Starnes v. Thompson

• Decision Date: 02 May 1917
• Docket Number: (No. 420.)
• Court: North Carolina Supreme Court
• Parties: STARNES et al. v. THOMPSON et al.

(173 N.C. 466)

92 S.E. 259

STARNES et al.

v.THOMPSON et al.

(No. 420.)

Supreme Court of North Carolina.

May 2, 1917.

Appeal from Superior Court, Union County; Cline, Judge.

Action by Daniel Starnes and others against L. A. Thompson and others. Defendants appeal from the overruling of their demurrer and motions to dismiss, and plaintiffs appeal from a ruling granting a continuance. 'Reversed.

Civil action on special appearance and motion by defendants to dismiss the action for want of jurisdiction of the court, and then on demurrer to the complaint, based upon the grounds: First, that the court has no jurisdiction of the action; and, second, that there is no cause of action stated, as the plaintiffs cannot attack collaterally the probate of a will taken in the court of another county, where the testator resided and was domiciled at his death. The action was brought to remove a cloud from the title to land, which plaintiffs allege they own. It is stated in the complaint that Alexander Thompson died in 1839, in Mecklenburg county, without having a will, and that defendants in 1912 produced before the clerk of the superior court of Mecklenburg county a paper writing purporting to be his will, and caused the same to be probated by said clerk in common form, that Alexander Thompson never signed or executed the said paper as his will, and no proof was offered as to his handwriting, and that the proofs before the clerk were otherwise irregular and defective. Defendants claim title to the land under the will, which plaintiffs allege clouds their title to the same, as the will, which was probated in Mecklenburg county where the land was situated, at the death of Alexander Thompson, but since added to Union county by statute, is not his will and was not properly probated. They pray that the will and probate be set aside and annulled as a cloud on their title. The court overruled the motion and the demurrer, and defendants appealed.

Redwine & Sikes, of Monroe, for plaintiffs.

W. O. Lemmond, of Monroe, E. R. Preston, of Charlotte, and Vann & Pratt, of Monroe, for defendants.

WALKER, J. (after stating the facts as above). [1-5] It may be safely assumed that the following doctrine has been established by the courts with reference to the conclusiveness and binding effect of judgments, so long as they remain in force and unreversed. Where a judgment rendered by a domestic court of general or superior jurisdiction is attacked in a collateral proceeding, there is a presumption, which can only be overcome by positive proof, that it had jurisdiction both of the persons and the subject-matter, and proceeded in the due exercise of its jurisdiction.

"Although the court may be an inferior or limited tribunal, yet if it has general jurisdiction of any one subject, its proceedings and judgments in respect thereto will be sustained by the same liberal presumptions which obtain in the case of superior courts." 1 Black on Judgments (2d Ed.) § 282; 23 Cyc. 1078, 1082; Moffitt v. Moffitt, 69 111. 641.

In nearly all the states of the Union probate courts, and orphans' or surrogates' courts now rank with the courts of general or superior jurisdiction for the purposes of the rule under consideration, so that it is not necessary for their records to show the facts essential to sustain their judgments, against collateral attack, but, on the contrary, their jurisdiction and authority willbe presumed. 23 Cyc. 1083. It will be shown hereafter that these rules prevail with us.

"Presumptions against the validity of the proceedings will not be indulged in, where the record does not affirmatively show any error or irregularity." 40 Cyc. 1378, note 28; McCrea v. Haraszthy, 51 Cal. 146, which is fatal to the judgment therein.

It has been held that assumption of jurisdiction by the court is prima facie evidence of the fact that it had it in the particular case, and throws the burden of disproving it on the party who denies that jurisdiction existed. 40 Cyc. 1379, note 37; Fletcher v. Sanders, 7 Dana (Ky.) 345, 32 Am. Dec. 96. This doctrine is clearly stated by Chief Justice Smith in Sumner v. Sessoms, 94 N. C. 376:

"It is true the record produced does not show that notice was served on the infant, or upon her guardian ad litem, nor does the contrary appear in the record, which, so far as we have it, is silent on the point. The jurisdiction is presumed to have been acquired by the exercise of it, and, if not, the judgment must stand, and cannot be treated as a nullity, until so declared in some impeaching proceeding, instituted and directed to that end. The irregularity, if such there be, may, in this mode, be such as to warrant a judgment declaring; it null, but it remains in force until this is done."

We have approved it in Burgess v. Kirby, 94 N. C. 575; Hargrove v. Wilson, 148 N. C. 439, 62 S. E. 520; Rackley v. Roberts, 147 N. C. 201, 60 S. E. 975; and Pinnell v. Burroughs, 168 N. C. 315, 320, 84 S. E. 364, and many other cases. This principle was stated and applied by Justice Hoke, speaking for the court in the recent case of Massie v. Hainey, 165 N. C. 174, 81 S. E. 135, where he says:

"If this lack of jurisdiction appears of record, the judgment may be treated as a nullity when and wherever relied upon; but in most instances, and this is true where a party, though without authority, appears of record as plaintiff, it is both desirable and necessary that relief should be obtained by direct proceedings, the appropriate method, under our present system, being, as stated, by motion in the cause. Rack-ley v. Roberts, 147 N. C. 201 ; Flowers v. King, 145 N. C. 234 [58 S. E. 1074, 122 Am. St. Rep. 444]; Grant v. Harrell, 109 N. C. 78 ; Sutton v. Schonwald, 86 N. C. 198 ; Yeargin v. Wood, 84 N. C. 326; Doyle v. Brown, 72 N. C. 393; Black on Judgments, § 307."

And also it was recognized by Judge Nash in Harven v. Springs, 32 N. C. 180, 183, in the case of the probate of a will, where he said that there was a presumption in favor of a correct probate, if the will has been admitted to probate. The term "judgment" implies, prima facie, that all essentials were complied with, even to the extent of presuming, where there were two witnesses to a will, which was proved by one of them, and other evidence, that he testified to the proper execution and attestation of it, as without the necessary proof the court would not have admitted it to probate. These decisions are founded upon one of the favorite maxims of the law, that with regard to judicial proceedings everything is presumed to have been rightly and duly performed until the contrary is shown in the proper way. "Omnia rite acta præsumuntur." Broom's Maxims 944, Co. Litt. 6, 232.

As jurisdiction is presumed, at least prima facie, any acts or omissions affecting the validity of the proceedings and judgment must be affirmatively shown, and unless the want of jurisdiction, either as to the subject-matter or the parties, appears in some proper form, the jurisdiction and regularity of the proceedings leading up to the judgment will be supported by every intendment. 11 Cyc. 692, 693. The principle was well expressed by one of the courts:

"If the court had jurisdiction of the subject-matter, and the parties, it is altogether immaterial how grossly irregular, or manifestly erroneous, its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached. On the other hand, if it proceeded without jurisdiction, it is equally unimportant how technically correct, and precisely certain, in point of form, its record may appear; its judgment is void to every intent, and for every purpose." Sheldon v. Newton, 3 Ohio St. 498

—or as expressed in another case:

"The power to review and reverse the decision so made is clearly appellate in its character, and can be exercised only by an appellate tribunal in a proceeding had directly for that purpose. It cannot, and ought not to, be done by another court, in another case, where the subject is presented incidentally and a reversal sought in such collateral proceeding. The settled rule of law is that, jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular * * * and irreversible for error. In the absence of fraud, no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case." Nash v. Williams, 87 U. S. (20 Wall.) 226, 22 L. Ed. 254, approved in Daing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. Ed. 525.

"The rules, as to the presumptions in favor of courts of general jurisdiction, apply to courts of probate and those with like powers, where they are courts of general jurisdiction, or possess the attributes thereof, even though they have not exclusive jurisdiction, or have a limited, but not a special, jurisdiction, or their powers are limited to certain specified subjects." 11 Cyc. 694.

And Mr. Black says, in his work on Judgments, vol. 1 (2d Ed.) § 282:

"It is further to be remarked that, although a court may be an inferior or limited tribunal, yet if it has general jurisdiction of any one subject, its proceedings and judgments in respect to that subject will be sustained by the same liberal presumptions as to jurisdiction which obtain in the case of the superior courts."

Our statute makes the record and probate of a will, even in common form— "conclusive in evidence of the validity of the wiU, until it is vacated on appeal or declared void by a competent tribunal." Revisal, §§ 3128, 3139.

The presumption, then, being in favor of the will and probate, the burden is upon him who would assail it. He may impeach them directly, but not collaterally.

"It is well settled that a judgment or decree admitting a will to...