Stafford v. Gallops

• Decision Date: 18 October 1898
• Citation: 31 S.E. 265,123 N.C. 19
• Parties: STAFFORD v. GALLOPS et al.
• Court: North Carolina Supreme Court

31 S.E. 265

123 N.C. 19

STAFFORD v. GALLOPS et al.

Supreme Court of North Carolina

October 18, 1898

Appeal from superior court, Pasquotank county; Timberlake, Judge.

Action by A. F. Stafford agaisnt Isaac Gallops and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

G. W Ward, for appellant.

E. F Aydlett, for appellees.

FAIRCLOTH C.J.

Action for trespass by cutting wood, etc., involving title to the locus in quo. The plaintiff, in deducing his title, offered in evidence a certain record and judgment, presently referred to, which was excluded by his honor; and the plaintiff took a nonsuit, and appealed. The competency of said judgment is the only question we have to consider, and that raises the question whether the judgment was void, or irregular and voidable only. In 1387 H. C. Harris and wife, Laura T executed their promissory notes, payable to Sarah E. Harris and conveyed the land to John A. Harris in trust to secure the payment of said notes, and subsequently the payee assigned said notes to the plaintiff's intestate. Before the trust was closed, the trustee died. The plaintiff applied to the clerk to have another trustee appointed, and the clerk issued a summons on December 8, 1891, notifying the trustors and Sarah E. Harris to appear before him on December 19, 1891, and answer the plaintiff's complaint. The officer's return on the summons was, "Executed December 11, 1891." On the return day of the summons the defendants failed to appear, answer, or demur, and the clerk appointed a trustee with all the powers of the first trustee. The trustee, on proper notice, sold the land, and the plaintiff's intestate was the purchaser. The defendants' position is that as they had not the 10-days notice required by Code, §§ 279, 1276, the judgment of the clerk appointing a trustee was void, and that the trustee's sale and deed conveyed no title. That is the point. Much has been written on the character and force of judgments, and we find them to be erroneous, irregular, or void. An erroneous judgment is one rendered according to the course and practice of the courts, but contrary to law; that is, based upon an erroneous application of legal principles. Wolfe v. Davis, 74 N.C. 597; McKee v. Angel, 90 N.C. 60. A void judgment is, in legal effect, no judgment. No rights are acquired or devested by it. It neither binds nor bars any one, and all proceedings founded upon it are worthless (1 Freem. Judgm. [4th Ed.] § 117; Black, Judgm. § 170),--as if judgment be rendered without service on the party, or his appearance (Armstrong v. Harshaw, 12 N.C. 187; Stallings v. Gulley, 48 N.C. 344; Condry v. Cheshire, 88 N.C. 375). An irregular judgment is one contrary to the course and practice of the courts, and is held valid until vacated or reversed. Wolfe v. Davis and McKee v. Angel, supra; Black, Judgm. § 170; 1 Freem. Judgm. § 116 et seq. The question of jurisdiction lies behind all judgments, decrees, and orders. If they are entered by a court without jurisdiction, they are nullities, and may be disregarded by any one, whether relied upon directly or collaterally. Every court, before it can enter a lawful judgment, must have jurisdiction (1) of the subject-matter, and (2) of the person. Jurisdiction of the subject is conferred by the constitution, statutes, and the law of the land; that is, by sovereign authority. Black, Judgm. § 240; Cooper v. Reynolds, 10 Wall. 308. Jurisdiction of the person is acquired by service of process. A court, thus having acquired jurisdiction, is clothed with power to hear and determine; and its orders and decrees are binding upon all the parties, until reversed or vacated by some direct proceeding, because public policy requires it, and because a judgment is a record, and a record imports in it such uncontrollable credit and verity as it admits no averment, plea, or proof to the contrary. Co. Litt. 260a. Defective service has given rise to many irregularities in the course of the courts, but it will be found that they do not render the final judgment void, but only irregular, unless the defect is such as to amount to no service. The instances found in the opinions of this court of such irregularities are too numerous to mention here. Examples: A judgment exceeding the amount demanded in the writ is not void, but irregular and...