Spillman v. Williams

• Decision Date: 31 October 1884
• Citation: 91 N.C. 483
• Court: North Carolina Supreme Court
• Parties: P. H. SPILLMAN v. AUGUSTUS WILLIAMS and others.

91 N.C. 483

P. H. SPILLMAN

v.AUGUSTUS WILLIAMS and others.

Supreme Court of North Carolina.

October Term, 1884.

OPINION TEXT STARTS HERE

EJECTMENT, tried at Fall Term, 1883, of YADKIN Superior Court, before Shipp, J.

This action was brought to recover the land described in the complaint. The defendants claimed title thereto as hereinafter indicated.

On the 26th day of March, 1873, C. W. Williams brought his action before a justice of the peace in Yadkin county against the plaintiff to recover the sum of $125.35. The summons in that action was made returnable on the 28th day of April, 1873. On the same day it was issued the sheriff made this return thereon: “Defendant not to be found in Yadkin county--said to be in the state of Iowa.”

On the same day, the justice of the peace, upon application and an affidavit,--the material parts of which are as follows: “first, that the defendant, P. H. Spillman, is indebted to the plaintiff in the sum of $125.35, or thereabouts, which sum is due by note; and secondly, that defendant is not a resident of this state,”--granted a warrant of attachment in that behalf, returnable before him on the 28th day of April, 1873. This warrant was levied upon the land of the plaintiff in this action.

No order of publication of the summons, or notice thereof, or notice of the warrant of attachment appears, otherwise than is stated below.

On the 28th day of April, 1873, the justice of the peace gave judgment, the material parts of which are in these words: “Summons returned March 26th, 1873. Case came on for trial: defendant not found: said to be in the state of Iowa: it is adjudged that plaintiff have judgment by default for the sum of one hundred and fifteen dollars principal money: interest twelve dollars and seven cents with costs of this action.

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                ¦April 28th, 1873.¦H. B. BROWN, J. P.”¦
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“Plaintiff prays an attachment, which is granted; due advertisement being made for 30 days. Defendant fails to appear and answer according to law. Judgment final granted and property condemned to use of plaintiff.

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                ¦April 28th, 1873.¦H. B. BROWN, J. P.”¦
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The justice of the peace certified his judgment and the attachment proceedings to the superior court, June 3, 2873, and the judgment was there docketed. Thereupon, the clerk of that court issued an execution, commanding the sheriff of Yadkin county, “of the goods and chattels, lands and tenements of P. H. Spillman, if to be found in your county, you cause to be made the sum of one hundred and twenty-seven dollars and seven cents; one hundred and fifteen dollars is principal money, besides the further sum of two dollars and sixty cents costs in said suit expended, whereof the said defendant is liable as appears to us of record in the suit of C. W. Williams against P. H. Spillman in justices's court before H. B. Brown, Esq., and transferred to the judgment docket of this court on the 3d day of June, 1873.”

The sheriff made return of this execution to the effect that he had levied the same on 62 acres of land; that he had sold the same, and C. W. Williams, the plaintiff in the execution, became the purchaser at the price of $105, which sum was applied to payment of costs, and to part payment of the judgment, and a deed was made by the sheriff to the purchaser.

It appeared in evidence on the trial, in this action, that the plaintiff had at the time of the trial, been absent from this state ever since before 1873. It did not appear that any publication of notice of the summons or the warrant of attachment, granted by the justice of the peace, was ever made, except as stated by him in his order touching the warrant of attachment made next after his judgment for the debt.

It likewise appeared that C. W. Williams died intestate in March of 1876, and the defendants, except the defendant, Augustus Williams, are his heirs at law, and as such, they made application to the proper court and the land in question was sold for partition; at that sale the defendant, Augustus Williams, became the purchaser, and he paid a part of the purchase money.

The plaintiff insisted that the judgment given by the justice of the peace and the warrant of attachment and the sale of the land under and in pursuance of the same, were absolutely void, and passed no title to the land to the defendants as such heirs-at-law.

The defendants on the contrary, insisted that the judgment, the attachment proceedings and the sale of the land under them, were in all respects valid and passed the title to the land to the defendants, heirs-at-law; and at all events, the judgment, attachment and other proceedings were at most only irregular and not void, and therefore could not be attacked collaterally in this action.

The court held that the judgment and the other proceedings in connection with and following it, were void and of no effect. The defendants excepted.

There was a verdict and judgment for the plaintiff and the defendants appealed to this court.

Messrs. Furches and Williamson, for plaintiff .

Messrs. Clement & Gaither, for defendants .

MERRIMON, J., after stating the case.

Although a judgment be irregular or erroneous, yet, if the court granting it had jurisdiction of the parties to, and the subject matter of the action in which it was granted, it is not void, and it cannot be attacked collaterally for such irregularity or error. If it be irregular, that is, if it be granted contrary to the course of the court, it may be set aside, or corrected upon application of the party aggrieved in the action in which it was granted, by motion or other proper proceeding. If it be erroneous, that is, if it be granted upon an erroneous view of the law applicable to the case in some material respect, the court granting it may, in apt time, correct its own error of law; or it may be corrected in an appellate court. Williams v. Woodhouse, 3 Dev., 257; White v. Albertson, Id., 241; Jennings v. Stafford, 1 Ired., 404; Stallings v. Gulley, 3 Jones, 344.

And in courts of record of general jurisdiction, where the court assumes jurisdiction, there arises a presumption in its favor,...