Ferguson v. . Price

BbogdeN, J. (1) Was tbe judgment signed by Judge Stack, at tbe November Term, 1927, in tbe proceeding entitled: John Daniels et al. v. David Price, administrator, el ah, void ? (2) Does such judgment constitute a bar to the right of plaintiffs to recover against tbe administrator? In determining whether tbe judgment of tbe Superior Court entered by Judge Stack, at tbe November Term, 1927, was void, it is necessary to keep certain facts clearly in mind. In the first place, tbe res or subject-matter of tbe action was subject to 'the jurisdiction of tbe Superior Court; that is to say, the money was within tbe jurisdiction of tbe court and tbe administrator bolding tbe money was likewise subject to tbe jurisdiction of tbe court, and at all times under tbe control, direction and supervision of tbe court. Consequently, tbe suit was an action in rem. Tbe judgment roll discloses that tbe purpose of tbe action was to discover tbe next of kin of A. L. Bethel, who were apparently widely scattered and to distribute tbe entire fund to such persons as tbe court might determine entitled thereto after due investigation and inquiry in accordance with law. The plaintiffs in the present suit were not parties to the former action in the Superior Court and their testimony is to tbe effect that they knew nothing of tbe proceeding. However, an attempt was made by publication to give notice to all parties who claimed an interest in tbe estate of deceased. Indeed, no other method was available. An affidavit was filed in the cause setting forth that tbe summons bad been returned and that certain defendants were not to be found in Eocking-bam County, or, after due diligence, within tbe State of North Carolina. An order of publication was duly made and in tbe notice of publication duly signed by tbe clerk of tbe Superior Court on 9 April, 1927, certain defendants therein specified “and all other persons who claim any right, title or interest in and to tbe estate of A. L. Bethel were notified that an action entitled as above has been commenced in tbe Superior Court of Eockingbam County to determine tbe heirs of tbe A. L. Bethel estate.” *41 Said notice of publication further required all such persons to appear at the office of the clerk of the Superior Court at Wentworth on or before 11 May, 1921, “and answer or demur to the petition filed in this cause,” etc. This notice was duly published. C. S., 484, authorizes the service of summons in certain instances therein specified “where the subject of the action is real or personal property in this State, and the defendant has, or claims, or the relief demanded consists wholly or partly in excluding him from any actual or contingent lien or interest therein.” Obviously, the subject of the action was money in the hands of an administrator, and the plaintiffs in the present action had or claimed an interest therein. While it is unfortunate that the plaintiffs in the present suit did not see the notice or assert their rights, it cannot be held that the Stack judgment of November, 1927, was void. Moreover, the plaintiffs in the present suit do not mention the judgment in their complaint, and, therefore, neither attempt to set. it aside so far as they are concerned by an independent action nor motion in the cause. McIntosh in North Carolina Practice and Procedure, page 317, section 321, says: “The owner of property, whether resident or nonresident, who cannot be reached personally by the process of court, is presumed to look after his interest, and when notice is given in a proper proceeding affecting his property and in a manner provided by law, he is bound by it.” This declaration of the author is fully supported by Foster v. Allison Corporation, 191 N. C., 166, 131 S. E., 648. Indeed, C. S., 492, referring to judgments on substituted service or service by publication, declares: “No fiduciary officer or trustee who has made distribution of a fund under such judgment in good faith, is personally liable,” etc. See Lawrence v. Hardy, 151 N. C., 123, 65 S. E., 766; Stevenson v. Trust Co., 202 N. C., 92, 161 S. E., 728. See, also, Harris v. Starkey, 57 N. E., 698; O'Neill v. Cunningham, 244 Pac., 444. It necessarily follows from the conclusion upon the first question of law that said judgment constitutes an estoppel so far as the administrator is concerned, as it stands admitted upon the record that he has disbursed the entire fund in his hands in accordance with the judgment of a court of competent jurisdiction. As no relief is asked except as against the administrator, the ruling of the trial judge was correct. Affirmed.