State ex rel. Hanson v. Yandle, 5261

• Decision Date: 07 May 1952
• Docket Number: No. 5261,5261
• Citation: 70 S.E.2d 565,235 N.C. 532
• Court: North Carolina Supreme Court
• Parties: STATE ex rel. HANSON et al. v. YANDLE et al.

Page 565

70 S.E.2d 565

235 N.C. 532

STATE ex rel. HANSON et al. v. YANDLE et al.

No. 5261

Supreme Court of North Carolina.

May 7, 1952

J. F. Flowers, Charlotte, for appellant Massachusetts Bonding & Insurance Co.

Harry McMullan, Atty. Gen., and Raymond C. Maxwell, Sp. Asst. to Atty. Gen., for appellee University of North Carolina.

Taliaferro, Clarkson & Grier and William E. Poe, all of Charlotte, for appellee Mecklenburg County.

BARNHILL, Justice.

This appeal poses for decision only one question, to wit: Was the Superior Court judge vested with authority to enter the adjudication contained in paragraph (19) of the final judgment herein entered 15 September 1936?

If the court was without authority, its judgment as contained in said paragraph is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, Clark v. Homes, 189 N.C. 703, 128 S.E. 20, Boone v. Sparrow, N.C., 70 S.E.2d 204, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea. Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27; High v. Pearce, 220 N.C. 266, 17 S.E.2d 108; McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219; Boone v. Sparrow, supra.

So then, there is no question but that the respondents may assail paragraph (19) of the final judgment herein as a nullity for want of jurisdiction of the judge to grant the relief therein attempted.

The contention is advanced that the final judgment is a consent judgment. It does recite a proposed settlement and the consent of the respondent University. Even so, on the question here presented, it is immaterial whether it was or was not entered by consent. If the court was without jurisdiction of the subject matter in the first instance, the consent of the parties adds nothing to the force and effect of the judgment, for jurisdiction of the subject matter cannot be conferred by consent of the parties. McRary v. McRary, supra; Reaves v. Mill Co., 216 N.C. 462, 5 S.E.2d 305; High v. Pearce, supra; McCune v. Manufacturing Co., supra. The provision must stand or fall on the authority or want of authority of the judge to insert it as a part of the final judgment.

On this question the respondents contend the adjudication constitutes an attempt on the part of the court to enter an anticipatory judgment settling rights that might accrue at some time in the future upon a state of facts which had not arisen when the judgment was entered and might never arise in the future. If their premise is sound, their conclusion that the judgment is void is well founded and must be sustained.

On the other hand, the appellant Bonding Company contends that the subject matter under consideration was the settlement of its liability as surety upon the performance bonds of the former clerk and the question immediately at issue was the amount to be paid by it in settlement of its liability and the conditions upon which it should pay the sum agreed into the office of the clerk of the Superior Court. The judgment fixed the amount to be paid and paragraph (19) decreed the conditions upon which it was to be paid. These were matters clearly within the jurisdiction of the court. So it asserts.

We are constrained to concur in the view of the appellant. While the record is not entirely clear on that point, it seems the court allowed all claims as they appeared on the books and records of the former clerk (including claims not filed with the receiver) except such as were expressly rejected or denied by the judgment entered. It is a matter of common knowledge, at least among lawyers and judges, that many small amounts of money from various sources come into the hands of the clerks of the Superior Court for the use of various and sundry persons who never appear and claim what is theirs. The Bonding Company was willing to pay into the office of the clerk of the court a sum sufficient to meet the liability of its principal for the payment of the several amounts which might in fact be claimed by those for whose use and benefit they were held. It was unwilling to pay any amount which would eventually escheat to the University or revert to the school fund. The receiver was unwilling to agree to the deposit of any amount less than that required to discharge the liabilities of the...