Stancill v. Gay
| Decision Date | 28 February 1885 |
| Citation | 92 N.C. 462 |
| Court | North Carolina Supreme Court |
| Parties | STANCILL v. GAY |
1. A judgment rendered against infant defendants, who have never been served with process, and who have no general or testamentary guardian nor guardian ad litem, is void.
2. The receipt of money under such judgment by the infants, does not give vitality to the judgment. They may be made to account for the amounts received in another action.
3. The Code, sec. 387, making valid judgments against infants and certain other persons, in cases where, being parties defendant, they are not personally served, does not apply to cases where there has never been any service upon the infant, nor upon any person representing him.
( Armstrong v. Harshaw, 1 Dev., 187; Stallings v. Gulley, 3 Jones, 344; Doyle v. Brown, 72 N. C., 393; Larkins v. Bullard, 88 N. C., 35; Young v. Young, 91 N. C., 359, cited and approved).
The same counsel appeared as in the previous case, and the facts are the same.
The appellees were infants and had a substantial interest which it was sought to affect by the special proceeding and the judgment thereon, in respect to which the motion embraced in this appeal was made. It appears that no summons in that proceeding was ever served upon them, nor was a guardian ad litem appointed for any one of them, nor did they appear, nor did any counsel appear for them, nor was any defence made by them or in their behalf.
It is manifest that the judgment in that proceeding, in so far as it purports to apply to them, was not only irregular, but absolutely void.
The court did not obtain jurisdiction of the appellees. There was no service of process upon them personally, nor was there constructive service, nor were they brought into the proceeding in any way recognized by law, or indeed, at all. Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him. Armstrong v. Harshaw, 1 Dev., 187; Stallings v. Gulley, 3 Jones, 344; Doyle v. Brown, 72 N. C., 393; Larkins v. Bullard, 88 N. C., 35; Young v. Young, 91 N. C., 359.
Notice was issued to them by the counsel of the appellants, to procure the appointment of a guardian ad litem for themselves. This notice was without authority and had no sanction of law. In the absence of a general or testamentary guardian, it was the duty of the court, upon the motion of any party to the proceeding, to appoint a guardian ad litem. The notice mentioned seems to have been served upon but one of them; but this was not material, because it was not process; it did not purport to be, nor was any guardian ad litem appointed.
The appellees received the money designated in the judgment, as shares of the fund distributed, due to them respectively, but it appears that they were not fully informed as to the nature of the proceeding and its purpose; it does not appear what were their ages respectively, at the time they received the money, nor is it...
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In re K.J.L.
...94 N.C. 167, 172 (1886) (emphasis omitted) (citing Farley v. Lea, 20 N.C. 307 (1838); State v. Love, 23 N.C. 264 (1840); Stancill v. Gay, 92 N.C. 455 (1885)). Although Peoples predates the adoption of the Rules of Civil Procedure, it is evidence of the principle that the pleadings, which in......
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Harris v. Bennett
...therein rendered, and, if the fact be true, or in law they are not to be regarded as parties, their deduction follows inevitably. Stancill v. Gay, 92 N.C. 462; Harrison Harrison, 106 N.C. 282, 11 S.E. 356. But we think that they are bound by that proceeding and that they cannot successfully......
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Rackley v. Roberts
...the deed in question and to declare the nature of the trusts, because the parties had not been properly served with process. Stancill v. Gay, 92 N. C. 455, and Id., 92 N. C. 462, was a motion in the original cause. We may add also that what we said in Carraway v. Lassiter, supra, was not in......
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Rackley v. Roberts
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