V1ck v. Flournoy

• Citation: 147 N.C. 209,60 S.E. 978
• Parties: V1CK . v. FLOURNOY.
• Decision Date: 25 March 1908
• Court: United States State Supreme Court of North Carolina

60 S.E. 978

147 N.C. 209

V1CK .

v.FLOURNOY.

Supreme Court of North Carolina.

March 25, 1908.

1. Judgment —Jurisdiction of Court—Nature of Action—Service of Process.

An action to redeem land from a mortgage, and to enforce a contract in respect thereto, made between the mortgagor and the executor of the deceased mortgagee, is substantially an action in rem, and the court acquires jurisdiction to grant the relief demanded against nonresident defendants personally served beyond the state, as provided by Revisal 1905, § 448, in lieu of service by publication, authorized by section 442, subsecs. 3, 4, authorizing the service of summons by publication, where defendant is a nonresident, and the subject of the action is real property in the state, etc.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 25-33.]

2. Same.

A valid judgment strictly in personam cannot be had, unless there has been a voluntary appearance by defendant, or there has been service of process on him within the jurisdiction of the court, and personal service beyond the jurisdiction is ineffectual.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 30, Judgment, §§ 25-33.]

3. Process—Summons—Form—Seal.

Where a nonresident defendant, personally served beyond the state, as provided by Revisal 1905, § 448, was notified of the time and place for his appearance, and informed of the purpose of the action, the objection that the summons was not under seal was not of the substance, though it be assumed that under section 431 a seal is required.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 40, Process, § 35.]

Appeal from Superior Court, Edgecombe County; Neal, Judge.

Action by John B. Vick, as administrator of John Vick, deceased, and individually, against W. S. Flournoy. From a judgment of dismissal, plaintiff appeals. Reversed.

The facts upon which said notice was considered and determined were as follows: On August 1, 1884, John Vick, who was the owner of a tract of land in Edgecombe county, N. C., executed to O. C. Farrar a mortgage on said land to secure a note for $1,-474.34, which he owed Farrar, and which was due and payable on January 1, 1885. This mortgage was put to record in the Edgecombe Registry Book 59, p. 265. On the———— day of May, 1891, O. C. Farrar died testate, and G. B. Wright qualified as his executor. On the ———— day of January, 1892, Geo. B. Wright, executor, etc., and John Vick made an agreement that the said Wright, executor, should take possession of the land, and work out the mortgage debt then due, and in pursuance of that agreement Wright, executor, did go into possession of the tract of land. On the ———— day of September, 1894, 6. B. Wright, executor, died, and F. S. Royster qualified as administrator d. b. n. c. t. a. of O. C. Farrar. On April 11, 1898, John Vick the owner of the land, died intestate, and on August 23, 1907, his son John B. Vick qualified as his administrator. He was also the sole heir at law of the decedent. In pursuance of the agreement by which Wright went into possession of the land, and after his death, the succeeding administrator, F. S. Royster, remained in possession of the same till April 14, 1898, receiving the rents and profits therefrom. On April 14, 1898, the land was allotted to Annie M. Farrar, as heir at law of O. C. Farrar, in the division of his lands among his heirs at law, and soon thereafter the said Annie M. Farrar was married to the defendant, W. S. Flournoy. The said Annie M. Flournoy, from the time the land was allotted to her in the division of her father's lands among his heirs at law, to wit, April 14, 1898, remained in possession of the same, receiving the rents and profits therefrom till November, 1898, when, by regular proceedings begun by Mrs. Mary Vick (John Vick's widow), against Annie M. Flournoy and John B. Vick (John Vick's heir at law), dower was allotted in the tract of land to Mrs. Mary Vick. The boundaries of the dower tract are specifically set out in the complaint, and the proceedings are duly recorded in the records of Edgecombe county. After her dower was allotted in November, 1898, Mary Vick, the widow of John Vick, went into possession of the dower part of said land, and held the same, receiving the rents and profits till August 30, 1905, when she died. F. S. Royster, the administrator d. b. n. c. t. a. of O. C. Farrar, and Annie M. Flournoy and her husband, W. S. Flournoy, are all nonresidents of North Carolina; the former residing in Virginia, and Mr. and Mrs. Flournoy in Missouri. Various and sundry payments have from time to time been paid on the mortgage debt of John Vick prior to his death, and these payments, with the rents and profits collected by Wright and Royster, are sufficient to discharge the mortgage debt. On August 11, 1906, J. B. Vick brought his suit in the superior court of Edgecombe county to redeem the said landand to enforce the contract made in respect of the same with him by the said Wright, executor, by virtue of which he went into possession. All the defendants being nonresidents, personal service could not be had, and plaintiff made service in compliance with provisions of subsection 8, § 218, Clark's Code, or section 448, Revisal 1905. With the requirements of this statute strict compliance was made. When the case came on for hearing, the defendants, through their counsel, who had entered special appearance, moved to dismiss the action upon the ground that the court had "no jurisdiction of the persons of the defendants, for want of proper service of the process." Motion sustained, and the plaintiffs appealed.

F. S. Spruill, W. O. Howard, and J. R. Gaskill, for appellant.

W. Stamps Howard and G. M. T. Fountain, for appellee.

HOKE, J. The principal question presented in this appeal, on the right of plaintiff to proceed as a matter of jurisdiction in the court, has been resolved against the defendants' position in several decisions of this court, notably the case of Bernhardt v. Brown, 118 N. C. 701 et seq., 24 S. E. 527, 715. 30 L. R. A. 402. In that well-considered opinion the present Chief Justice points out the different methods by which a court may acquire jurisdiction of a cause and of parties litigant, and among other rulings holds as follows: "First. There are three modes for the 'due service of process': (a) By actual service (or in lieu thereof, acceptance or waiver by appearance); (b) by publication in cases where it is authorized by law in proceedings in rem, in which cases the court already has jurisdiction of the res, as to enforce some lien on or a partition of property in its control; (c) by publication of the summons in cases authorized by law in proceedings quasi in rem. in which cases the court acquires jurisdiction by attaching property of a nonresident, absconding debtor, etc. A judgment obtained under process served by the two last-named methods has no personal efficiency, but acts only on the property. Second. A proceeding to enforce a mechanic's lien being in rem, the service of summons by publication is authorized by section 218 (4) of the Code, if defendant cannot, after due diligence, be found in the state, whether he is a nonresident or a resident. Third. In an action to enforce a mechanic's lien, and in all other proceedings in rem, it is not necessary, as in proceedings quasi in rem, to acquire jurisdiction by actual seizure or attachment of the property, the mere bringing of the suit in which the claim is sought to be enforced being equivalent to seizure." And in ...