Simmons v. Simmons
| Decision Date | 26 November 1947 |
| Docket Number | No. 597.,597. |
| Citation | 45 S.E.2d 124,228 N.C. 233 |
| Court | North Carolina Supreme Court |
| Parties | SIMMONS. v. SIMMONS. |
Appeal from Superior Court, Stanly County; Wm. G. Pittman, Judge.
Action to vacate absolute judgment of divorce by Elbia Camp Simmons against G. T. Simmons. From a judgment of dismissal, the plaintiff appeals.
Affirmed.
This action was brought by the plaintiff to vacate a judgment of absolute divorce rendered against her in a former action by her husband, the present defendant, instituted and heard in Anson County. It comes here upon appeal of the plaintiff from an adverse judgment on defendant's demurrer to the jurisdiction of the court. The judgment is assailed on the ground that it was procured by the plaintiff in that action by his own fraud in the following particulars: (a) That in his affidavit to procure notice by publication he falsely and fraudulently swore that he had a good cause of action for absolute divorce on the ground of two years separation, and that the defendant could not be found in Anson County or in the State of North Carolina after diligent inquiry, and that her whereabouts was unknown to him; (b) that theplaintiff in his affidavit accompanying and verifying the complaint, falsely represented that the facts therein stated were true and that he had known "the facts * * * alleged for absolute divorce for more than six months prior to the commencement of the action;" and (c) that the then plaintiff testified falsely and fraudulently upon the hearing of the cause before Judge Clement and a jury at November Term, 1945, of Anson Superior Court that he and the defendant therein (the present plaintiff) had lived separate and apart for more than two years prior to the commencement of the action, whereas, he well knew the falsity of such statement, and knew that they had, within the said two-year period, lived together as man and wife.
In addition to these charges of fraud the plaintiff attacks the validity of the order of publication for that it does not state, in the language of the statute, that the defendant "cannot, after due diligence be found in the state, " or any equivalent statement. The statement found in the affidavit reads as follows: "That the defendant, after diligent inquiry cannot be found in the State of North Carolina."
The defendant demurred to the jurisdiction of the court to entertain an independent action upon the grounds asserted, which was sustained. From the ensuing order dismissing the case plaintiff appealed.
Morton & Williams, of Albemarle, for plaintiff, appellant.
R. L. Smith & Son, of Albemarle, for defendant, appellee.
SEA WELL, Justice.
To avoid confusing definitions which may or may not be controlling in plaintiff's selection of an available remedy, we must turn to applicable precedents and established rules of practice in our own jurisdiction. Guided by these we are of the opinion that the plaintiff in this action must seek her remedy by motion in the cause in Anson County, where the proceeding was had and the judgment assailed was rendered, rather than by independent suit in Stanly County.
Certainly the affidavit on which the order of service by publication is made is jurisdictional, and the omission therefrom of those averments on which service of notice by publication is substituted for personal service would be fatal to the proceeding, G.S. § 1-98; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901; Groce v. Groce, 214 N.C. 398, 199 S.E. 388. But we have never seen the statement in the affidavit that the applicant has a "good" cause of action, of a certain character, so classed. Addressed as it is to the issuing court and its "satisfaction, " its truth or falsity must abide the trial on their merits, and any other holding would result in authority for the defendant, at any time, at his or her pleasure, to demand a retrial in the vestibule of the court rather than at the bar. Besides, neither G.S. § 1-98, nor G.S. § 1-99 requires the applicant to swear to the merits of his cause of action--only to say that he has one and the purpose thereof.
The appellant, as we take it, relies more strongly on the objection that the affidavit does not comply with the statute, G.S. § 1-98, in respect to the diligence used in the effort to secure personal service, citing Rodriguez v. Rodriguez, supra, in support of her position. The language employed in the statute is as follows:
"Where the person on whom the service of the summons is to be made cannot, after due diligence, be found in the state, and that fact...
To continue reading
Request your trial
-
Carpenter v. Carpenter
...is a nullity and so may be attacked by any person adversely affected thereby, at any time, collaterally or otherwise. Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Fowler v. Fowler, 190 N.C. 536, 130 S.E. In Rodriguez v. Rodriguez, 224 N. C. 275, 29 S.E.2d 901, Guerin v. Guerin, 208 N.C.......
-
McLean v. McLean
...failure to conform to the statute in this respect. G.S. § 1-99; Scott & Co. v. Jones, 230 N.C. 74, 52 S.E.2d 219; Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124. The Judge of the County Court found from the evidence offered that the plaintiff had been a resident of North Carolina for a suf......
-
Ridge Community Investors, Inc. v. Berry
...merely voidable or irregular, may be attacked at any time by anyone whose interests are adversely affected by it. See, Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315. For example, when a judgment operates as a lien upon real property, one who l......
-
East Carolina Lumber Co. v. West
...Caviness v. Hunt, 180 N.C. 384, 104 S.E. 763; Smathers v. Sprouse, 144 N. C. 637, 57 S.E. 392. Appellant, relving on Simmons v. Simmons, 228 N.C. 233, 45 S.E.2d 124, and Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280, contends that the action should have been treated as a motion in the cau......