Scott v. Mutual Reserve Fund Life Ass'n

• Decision Date: 21 March 1905
• Parties: SCOTT v. MUTUAL RESERVE FUND LIFE ASS'N.
• Court: North Carolina Supreme Court

50 S.E. 221

137 N.C. 515

SCOTT v. MUTUAL RESERVE FUND LIFE ASS'N.

Supreme Court of North Carolina

March 21, 1905

Appeal from Superior Court, Craven County; Councill, Judge.

Action by S. H. Scott against the Mutual Reserve Fund Life Association. From an order refusing to set aside a judgment defendant appeals. Affirmed.

Brown J., dissenting.

Where after judgment had been entered against a defendant by default, it unsuccessfully prosecuted an action to set aside the judgment on the ground of fraud, the judgment in such action was not res judicata of a subsequent proceeding by motion in the cause to set aside the default judgment for irregularity.

The plaintiff alleges that the defendant had wrongfully canceled his policy after he had paid thereon, in fees, annual dues and mortuary assessments, the sum of $521.65, and to recover that sum he sued in this action. The defendant being a nonresident insurance company, process was served on the Insurance Commissioner, as provided by the act of 1899, p 147, c. 54. At February term, 1902, there was a judgment by default and inquiry, defendant having failed to appear; and the record shows that at May term, 1902, the inquiry was executed, and a verdict and judgment for the above amount and interest, $899.32, were entered. On or about the 1st day of February, 1904, the defendant brought an action to set aside the judgment on the ground of fraud; and, having failed to prosecute the action with success (136 N.C. 157, 48 S.E. 581), it moved in the superior court to set aside the judgment for irregularity, alleging that the verdict was rendered without any evidence whatever having been submitted to the jury. At the time of making its motion, the defendant entered an appearance in the following terms: "The defendant, appearing for the purpose alone of making this motion, moves to set aside the judgment entered at May term, 1902, as irregular, and to find the facts as set forth in C. W. Camp's affidavit, or to pass upon said proposed findings of fact." The court refused to set aside the judgment upon the ground that the same matter had been adjudicated in the action to set aside the judgment for fraud. The defendant excepted and appealed.

J. W. Hinsdale and Shepherd & Shepherd, for appellant.

W. W. Clark, for appellee.

WALKER, J. (after stating the facts).

The case was argued before us as if the defendant had entered a special appearance, and the plaintiff's counsel insisted that, having done so, the defendant could not have the relief it seeks, nor could it appeal to this court; citing Clark v. Mfg. Co., 110 N.C. 111, 14 S.E. 518. The argument of both counsel was based upon a misconception of the true nature of the appearance entered by the defendant. In the first place, it does not, on its face, purport to be a special appearance. It is true, the defendant appeared solely for the purpose of moving to set aside the judgment; but, as such a motion involves only the merits of the case, and is not confined to the one objection that the court is without jurisdiction, it follows that an appearance entered solely for the purpose of making that motion is essentially a general appearance. The test for determining the character of an appearance is the relief asked; the law looking to its substance, rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its real character. 3 Cyc. pp. 502, 503. The question always is what a party has done, and not what he intended to do. If the relief prayed affects the merits, or the motion involves the merits--and a motion to vacate a judgment is such a motion--then the appearance is, in law, a general one. Id. pp. 508, 509. The court will not hear a party upon a special appearance except for the purpose of moving to dismiss an action or to vacate a judgment for want of jurisdiction, and the authorities seem to hold that such a motion cannot be coupled with another based upon grounds which relate to the merits. An appearance for any other purpose than to question the jurisdiction of the court is general. 2 Enc. of Pl. & Pr. 632. In Insurance Co. v. Robbins, 59 Neb. 170, 80 N.W. 484, the court says: "The effort of the company evidently was to try the matter, and obtain a judgment on the merits, while standing just outside the threshold of the court. This it could not do. A party cannot be permitted to occupy so ambiguous a position. He cannot deny the authority of the court to take cognizance of an action or proceeding, and at the same time seek a judgment in his favor on the ground that his adversary's allegations are false, or that his proofs are insufficient. 'A special appearance,' says Mitchell, J., in Gilbert v. Hall, 115 Ind. 549, 18 N.E. 28, 'may be entered for the purpose of taking advantage of any defect in the notice or summons, or to question the jurisdiction of the court over the person in any other manner; but filing a demurrer or motion which pertains to the merits of the complaint or petition constitutes a full appearance, and is hence a submission to the jurisdiction of the court.' Whether an appearance is general or special does not depend on the form of the pleading filed, but on its substance. If a defendant invoke the judgment of the court in any manner upon any question, except that of the power of the court to hear and decide the controversy, his appearance is general." See, also, Handy v. Ins. Co., 37 Ohio St. 366; Pry v. Railroad, 73 Mo. 123; Cohen v. Trowbridge, 6 Kan. 385; Briggs v. Humphrey, 83 Mass. (1 Allen) 373; Crawford v. Foster, 84 F. 939, 28 C. C. A. 576. "There are cases where the defendant may make a quasi appearance for the purpose of objecting to the manner in which he is brought before the court, and in fact to show that he is not legally there at all; but, if he ever appears to the merits, he submits himself completely to the jurisdiction of the court, and must abide the consequences. If he appears to the merits, no statement that he does not will avail him; and, if he makes a defense which can only be sustained by an exercise of jurisdiction, the appearance is general, whether it is in terms limited to a special purpose or not." Nichols v. People, 165 Ill. 502, 46 N.E. 237; 2 Enc. Pl. & Pr. 625.

We must hold, upon principle and authority, that the defendant has made a full appearance in the case, and will be bound in all respects by the orders and decrees of the court, even if not already bound by reason of the service of process. But the latter is in itself sufficient for that purpose. Biggs v. Ins. Co., 128 N.C. 5, 37 S.E. 955; Moore v. Ins. Co., 129 N.C. 31, 39 S.E. 637; Ins. Co. v. Scott, 136 N.C. 157, 48 S.E. 581; Fisher v. Ins. Co., 136 N.C. 217, 48 S.E. 667.

It is too plain for any argument that the defendant is not precluded by anything said or done in the action to set aside the judgment for fraud from now prosecuting this proceeding to set aside the judgment for irregularity. The court could not in that action consider the question now raised. A judgment cannot be vacated for irregularity in an independent action, but it must be done, if at all, by motion in the cause. This being so, nothing said in that case can conclude the defendant by way of estoppel, or as res judicata, or as the law of the case, or in any other way that we can now conceive. There was but one question before the court in that case, namely, whether the judgment was obtained by fraud. The only question involved in this proceeding is whether the judgment was irregular. In contemplation of the law, the two questions are quite diverse, and a decision of the one is not in any sense a decision of the other. A case directly in point is Tyler v. Capeheart, 125 N.C. 64, 34 S.E. 108, in which the true rule of res judicata is clearly stated, and Wagon Co. v. Byrd, 119 N.C. 460, 26 S.E. 144, explained and limited to its peculiar facts. The general result is this: In order to constitute a res judicata, the question in the pending suit must have been involved in the issue as joined in the former suit, and not merely one which might have been litigated, although not so involved. Williams v. Clouse, 91 N.C. 322; Turner v. Rosenthal, 116 N.C. 437, 21 S.E. 198. But however we may state the rule, it is quite sure this case is not within it, because the question presented was not and could not have been litigated in the former suit. Syme v. Trice, 96 N.C. 243, 1 S.E. 480. "An irregular judgment can be set aside by a motion in the cause by a party thereto at any time, not by an independent action." Insurance Co. v. Scott, 136 N.C. 159, 48 S.E. 581; Everett v. Reynolds, 114 N.C. 366, 19 S.E. 233. Although it may be set aside at any time (that is, after the term), this does not mean within any indefinite period of time, but within a reasonable time; and, besides, the mover must show merits. Williamson v. Hartman, 92 N.C. 236; Everett v. Reynolds, supra. As the court refused to find the facts upon the ground that, if they are correctly set forth in the affidavit of Camp, the motion should be denied, because by the judgment in the former suit the matter had been adjudicated, we must, for the purposes of this appeal, assume the facts to be as therein stated.

While the court, as we have seen, refused the defendant's motion upon an erroneous ground, there is no reason why we should not sustain the ruling, if it is in itself correct. We are not concerned so much with the reason for the ruling of the court as we are with the ruling itself. If it is right for any valid or sufficient reason, it must be affirmed. We think the judge was right in refusing the motion. The plaintiff sued to recover the amount of fees, annual dues and mortuary assessments paid by him on a policy which ...