Williams v. Trammell

Sea well, J. It is agreed between the parties that the plaintiffs’ title to the disputed lands depends entirely on whether the tax foreclosure action brought by Dare County v. Seligman, Williams & Ball, Inc., is effective to divest title thereto from that corporation from whom they claim title by mesne succession; and this is narrowed to the contention that the judgment in that proceeding is void for want of valid service of summons on the corporation and, therefore, subject to collateral attack. The regularity of the proceeding in- other respects is not challenged. Plaintiffs introduced the Judgment Eoll of the foreclosure suit for purpose of attack on the service of notice and the validity of the judgment. Defendants also introduced, item by item, practically all of the same Judgment Eoll, including the above mentioned summons to the Sheriff of Pasquotank County and the return thereon of Carmine, Sheriff of Pasquotank County, containing endorsement of personal service on F. Webb Williams, President Seligman, Williams & Ball', and another named person. The Judgment Eoll contains, therefore, two summonses : One purporting by endorsement to have been personally served on the President of the *578 defendant corporation in tbe manner required by tbe statute, and another served by publication procured on a defective affidavit, wbicb defective service and tbe recital in tbe judgment referring to it tbe plaintiffs contend completely vitiate any former notice and result in a void judgment. We may concede, without tbe necessity of deciding, that tbe attempted service of summons by publication conferred no jurisdiction on tbe court; and if no other valid service appeared in tbe record, tbe judgment would be void and subject to collateral attack. Also, it may be inferred from tbe recital of publication of summons in tbe judgment that tbe reference is to that attempted service by this method as appears in more detail in tbe record; and if no other service of summons appeared it would not be presumed, in this State at least, that another and better service was bad, thus saving tbe judgment from collateral attack. Freeman on Judgments, 5th Ed., p. 812. We can go this far with tbe plaintiffs, although tbe expression is obiter. It can avail tbe plaintiffs nothing since the record, as we have seen, discloses that a valid service on tbe corporation was made by personal service on its president. G-.S. 1-232. In tbe instant case tbe defendants do not allege or attempt to prove that such service was not actually made on tbe corporation in this manner. They do contend that this service is in some way challenged by tbe recital in tbe judgment of service by publication, reference to wbicb service proves it defective; and that tbe effectiveness of tbe personal service is thus destroyed, — -by abandonment, or by some sort of legal necessity wbicb confines tbe question of jurisdiction to tbe recital of service by publication, excluding tbe record of personal service. While tbe formal recitals in a judgment are not improper, especially when judgment is taken by default, they are not required by our statute. Tbe court here is one of general jurisdiction and tbe judgment is sufficiently supported by actual proof of service found elsewhere in tbe record. Tbe Judgment Roll, tbe selected parts of tbe proceedings wbicb tbe law sets apart and requires to be attached together and filed with tbe judgment as evidential support of tbe court’s solemn decrees, is significant in its every part. We must look to tbe entire record to see whether jurisdiction is actually acquired, notwithstanding inadvertent, inaccurate or mistaken recitals in tbe judgment. Freeman on Judgments, 5th Ed., p. 811, see. 381. If it has been so acquired in fact it is not repudiated or affected by a mere recital, nor will it lose its force, as supporting tbe decree, by reason of reference to another independent ineffective attempt at service. 49 C.J.S., “Judgments,” see. 71, and authorities cited; Freeman on Judgments, 5th Ed., p. 811; Brickhouse v. Sutton, 99 N.C. 103, 108, 5 S.E. 380. *579 It must not be inferred from these observations respecting jurisdictional recitals in a judgment that they are to be regarded as unimportant, even when not required by statute. We intend only to point out that the recitals are relative to other parts of the record, of equal or greater dignity, and to show the necessity of determining the question of validity of the service by examination of the whole record. Indeed there is a long line of authority, to which North Carolina has contributed, to the effect that recitals of jurisdictional facts rendered by a court of general jurisdiction cannot be collaterally attacked. McDonald v. Hoffman, 153 N.C. 254, 69 S.E. 49; American Cotton Oil Co. v. House, 68 A.L.R., anno, at p. 385. Where there is only one service involved and the recital is totally contradicted by the record, the latter prevails. Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223; Ricaud v. Alderman, 132 N.C. 62, 43 S.E. 543. This is but a repetition of the principle, still adhered to, that in order to let in collateral attack the fatal defect in the service, rendering the judgment absolutely void, must appear positively on the face of the record, — and not by evidence aliunde. Smathers v. Sprouse, 144 N.C. 637, 57 S.E. 392; Simmons v. Box Co., 148 N.C. 344, 345, 62 S.E. 435, and cases cited. It is unnecessary to point out again and with any greater emphasis that an examination of the whole record discloses valid service upon the corporation in the tax suit, and, therefore, it does not appear affirmatively on the face of the record that the corporation was not duly served with process. Considering, then, that the defective service by publication is thus by reference incorporated in the recital, the record containing the personal service is in contradiction with the recital and must control. Powell v. Turpin, 224 N.C. 67, 29 S.E. 2d 26. Applying these principles to the case at bar, we conclude that actual jurisdiction was acquired by the court by the personal service of summons on the president of the corporation sued in the tax foreclosure proceeding under review, and that this jurisdiction was not affected by the subsequent independent attempt at service by publication, or in the recitals thereof in the judgment. Defendants’ motion for judgment of nonsuit should have prevailed. The judgment to the contrary is Eeversed.