Buncombe County Board of Health v. Brown

*404 Pless, J. While the Swannanoa Sanitary and Sewer District (Swannanoa) is ordered to install and maintain the sewer line, it is not a party to this action and is not represented by counsel. The stipulations upon which the order is based are signed by counsel for the Buncombe County Board of Health and counsel for one of the individual respondents; consequently, they are not binding on Swannanoa, although the findings and order are dependent upon them. “It is axiomatic, at least in American jurisprudence, that a judgment rendered by a court against a citizen affecting his vested rights in an action or proceeding to which he is not a party is absolutely void and may be treated as a nullity whenever it is brought to the attention of the Court. We think that no case can be found in the courts of this country, State or Federal, in. which this principle is questioned. Certainly in this jurisdiction it is fundamental. Reade, J., in Doyle v. Brown, 72 N.C. 393, says: When a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him is not simply voidable, but void; and it may be so treated whenever and wherever offered, without any direct proceeding to vacate it. And the reason is that the want of service of process and the want of appearance is shown by the record itself, whenever it is offered.’ To the same effect is Condry v. Cheshire, 88 N.C. 375. Smith, C.J., in Lyon [Lynn] v. Lowe, ib., 478 (on page 482), says: ‘It is the clear right qf every person to be heard before any action is invoked and had before a judicial tribunal, affecting his rights of person or property. If no opportunity has been offered, and such prejudicial action has been taken, * * * the Court will at once, when judicially informed of the error, correct it: not because injustice is done in the particular case, but because it may have been done, and the inflexible maxim, audi alteram -partem, will be maintained. In such case the Court does not investigate the merits of the mattter in dispute, but sets aside the judgment and reopens the otherwise concluded matter, . . .” Card v. Finch, 142 N.C. 140, 54 S.E. 1009. Refer also to Powell v. Turpin, 224 N.C. 67, 29 S.E. 2d 26, and Clark v. Homes, 189 N.C. 703, 128 S.E. 20. The court made findings of fact in addition to the stipulated facts, and to each of these the petitioner excepted. The record, by which we are bound, contains no provision that the parties had agreed that the judge could make additional findings of fact, and no evidence is brought forward in the record to sustain them. In *405 the absence of such stipulation or agreement, the judge is limited lo the stipulated facts; and because he made additional findings of fact, the petitioner’s exceptions thereto are sustained. Hood, Comr. of Banks v. Johnson, 208 N.C. 77, 178 S.E. 855; Auto Co. v. Insurance Co., 239 N.C. 416, 80 S.E. 2d 35; Sparrow v. Casualty Co., 243 N.C. 60, 89 S.E. 2d 800. In its brief the appellant says “Did the court err in holding that the facts warrant a finding that there was a valid conveyance of the sewer line in question? This question is really the meat of the controversy in this appeal and it is hoped that the Court will answer this question to avoid the necessity of any further appeals.” A copy of the conveyance is not before us, and we are given no information as to its terms nor whether it was accepted. The stipulations have no provision that the Torian deed was accepted by Fairview or that it was recorded by anyone authorized to do so on behalf of Buncombe County. Also, the authority of the Fairview and Swannanoa Districts to accept conveyances or to make them is not shown, and the record does not disclose whether those two districts were, or were not, some of the fourteen sewer districts organized in 1927 as separate municipal corporations. Without further information on these subjects, we are unable to answer the appellant’s question. The order of the Superior Court is not supported by the stipulations; and as it places responsibility upon the Swannanoa Sanitary and Sewer District, which is not a party hereto, it is hereby vacated. Error and remanded.