Welch v. Welch

• Decision Date: 30 November 1927
• Docket Number: 464.
• Citation: 140 S.E. 436,194 N.C. 633
• Parties: WELCH et al. v. WELCH et al.
• Court: North Carolina Supreme Court

140 S.E. 436

194 N.C. 633

WELCH et al. v. WELCH et al.

No. 464.

Supreme Court of North Carolina

November 30, 1927

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Petition to sell land by A. B. Welch and others against Annie A. Welch and others. From the judgment, on appeal from the clerk's order of sale, dismissing the action, W. C. Owens appeals. Reversed and remanded.

On July 2, 1924, the petitioners made a contract with the South Atlantic Land Company, Inc., by the terms of which the company agreed to sell for them a tract of land containing 15 acres; and on August 14, 1924, the petitioners filed in the office of the clerk of the superior court a petition for an order of sale. They alleged that they and the defendants were owners and in possession of the land; that the defendants were minors that the income from the land was barely sufficient to pay the taxes and other charges; and that a sale for reinvestment was desirable. C. S. § 1744. They applied in writing for the appointment of a guardian ad litem for the infant defendants also for the appointment of some discreet person to act as guardian ad litem and to file an answer for those who might in any contingency become interested in the land. The appointments were made, and each guardian filed an answer after a summons had been issued and after service thereof had been accepted. The clerk then made an order appointing a commissioner to sell the land, and the commissioner thereafter filed a report of the several offers of purchase he had received for certain lots. On October 6, 1924, the clerk adjudged that the offers be accepted, that the sales be confirmed, and that deeds be executed and delivered to the purchasers; and on October 14, 1924, the special proceeding was approved and confirmed by the judge presiding in the judicial district. On October 19, 1927, the defendant Annie A. Welch, then 22 years of age, entered a special appearance by her attorneys and moved that all previous orders in the cause be set aside on the ground that the court had not acquired jurisdiction, in that no summons had been issued or served on her or on any of the other defendants, all of whom were minors when the orders were made. Proper notices were issued, and W. C. Owens, one of the purchasers, upon petition and motion, was made a party plaintiff and given leave to assert his rights and oppose the motion to vacate the judgment. The clerk found that no summons had been issued against any of the infant defendants; that the proceeding had been instituted by the issuance of a summons against the guardians ad litem; and that no money or notes for deferred payments had been turned over to him as directed by the order of sale. He thereupon concluded that his judgment was void and set aside the order of sale. Upon appeal, Judge Harding held that the proceeding was void for want of service of process upon the infant defendants, adopted the clerk's findings of fact, and dismissed the action. W. C. Owens excepted and appealed.

B. S Whiting, of Charlotte, for appellant.

Preston & Ross and J. L. De Laney, all of Charlotte, for appellees.

ADAMS J.

The appeal raises the two questions whether the clerk's judgment was void or irregular, and, if irregular, whether the appellant was an innocent purchaser for value without notice.

Under the practice which prevailed before 1868, a judgment in a special proceeding would not be set aside upon the application of a minor who had not been served with process if a guardian ad litem had been appointed to defend his interests and in good faith had made a defense in his behalf. Hare v. Hollomon, 94 N.C. 14. It was the general practice, loose as it was common, to apply for the appointment of a guardian ad litem without serving the infant with process; the guardian, after appointment of course, usually accepting service and answering for his ward. Cates v. Pickett, 97 N.C. 21, 1 S.E. 763. As suggested in Matthews v. Joyce, 85 N.C. 258, this practice had long prevailed in the state, and the power of appointment had been exercised without the issue of process against the infants, for the assigned reason that no practical benefit would result to them from such service because their interests were under the protection of the courts. England v. Garner, 90 N.C. 197.

But the process of appointment was changed by section 59 of the Code of Civil Procedure, which went into operation August 24, 1868. This section was subsequently repealed (Laws 1870-71, c. 233) and superseded by section 181 of the Code (section 406 of the Revisal; section 451 of the Consolidated Statutes). In cases decided soon after the adoption of the Code of Civil Procedure, it was held that a guardian ad litem could not be appointed until process had been served on the minor. Hyman v. Jarnigan, 65 N.C. 96; Turner v. Douglass, 72 N.C. 127; Moore v. Gidney, 75 N.C. 34. To the same effect is the later case of Young v. Young, 91 N.C. 359. If process was served neither on the minor nor on his guardian the judgment was void. Larkins v. Bullard, 88 N.C. 35; Stancill v. Gay, 92 N.C. 462; Perry v. Adams, 98 N.C. 167, 3 S.E. 729, 2 Am. St. Rep. 326; White v. Morris, 107 N.C. 92, 12 S.E. 80. In other cases it was held that the proceeding was irregular, but not void, in the absence of service on the minor, if process had been served on the guardian ad litem. "Mere irregularities in observing the provisions of the statute, not affecting the substance of its purpose, do not necessarily vitiate the action or special proceeding." Ward v. Lowndes, 96 N.C. 367, 378, 2 S.E. 591. In Williamson v. Hartman, 92 N.C. 239, it was said in reference to a motion to vacate the judgment, that every irregularity will not justify this course, that some irregularities are unimportant, and that the question whether such motion should be granted must depend upon circumstances and their application to the particular case. In reference to the subject, this statement was made in Carraway v. Lassiter, 139 N.C. 145, 154, 51 S.E. 968, 971:

"We have carefully examined the cases relied upon by petitioners, and find that the court has, in cases wherein the proceedings were instituted since the adoption of the Code, set aside judgments, etc., when no service of process was made upon the infants and refused to do so when the infant was in court notwithstanding irregularities in the proceeding. In Moore v. Gidney, 75 N.C. 34, Gulley v. Macy, 81 N.C. 356, Young v. Young, 91 N.C. 359, Stancill v. Gay, 92 N.C. 462, no summons was served on the infant defendant; guardians ad litem were appointed without personal service on the infants and filed answers. This court has in such cases invariably held that the court acquired no jurisdiction. When, however, personal service was made on the infants, a contrary ruling has been made."

This was approved in Hughes v. Pritchard, 153 N.C. 135, 69 S.E. 3, 138 Am. St. Rep. 649. There four of the defendants were infants under the age of 14 years. They were not served with process as the statute requires, but their guardian ad litem filed an answer for them. There were other defendants, some adults, others under 21 but over the age of 14. The judgment in a special proceeding was set aside as to the defendants who were under 14, there being no purchaser for value, the court saying:

"Proceeding now to consider

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