Harrell v. . Welstead

*819 Stacy, C. J. I£ it be conceded that the answer of the defendants was not properly filed (Michie’s Code, sec. 509), or was not filed in time, then the judgment by default and inquiry is void as to the corporate defendant, for said defendant had never been summoned to appear in Currituck County. Its summons was to appear before the clerk of the Superior Court of Pasquotank County and answer the complaint filed in his office. Therefore, unless the corporate defendant had come in by answer, it was not in court at all, and the judgment is without warrant of law as to it. Bank v. Wilson, 80 N. C., 200. By the same token or reason that the answer is excluded, the judgment is rendered ineffectual as against the nonappearing defendant. “Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him” — Merrimon, J., in Stancill v. Gay, 92 N. C., 462. A default judgment rendered against a defendant in an action where he has never been served with process returnable to the proper county, nor appeared in person or by attorney, is not simply voidable, but void, and will be set aside on motion. Fowler v. Fowler, 190 N. C., 536, 130 S. E., 315; Clark v. Homes, 189 N. C., 703, 128 S. E., 20; Moore v. Packer, 174 N. C., 665, 94 S. E., 449; Ins. Co. v. Scott, 136 N. C., 157, 48 S. E., 581; Condry v. Cheshire, 88 N. C., 375; Doyle v. Brown, 72 N. C., 393. Speaking of the effect of a judgment rendered against a defendant who had never been served with summons, in McKee v. Angel, 90 N. C., 60, Ashe, J., delivering the opinion of the Court, said: “Judgments are either irregular, erroneous or void. Irregular judgments are such as are entered contrary to the course and practice of the court. An erroneous judgment is one that is rendered contrary to law. “A void judgment is one which has only the semblance of a judgment, as if rendered by a court having no jurisdiction, or against a person who has had no notice to defend his rights. Stallings v. Gully, 48 N. C., 344; Armstrong v. Harshaw, 12 N. C., 187; Jennings v. Stafford, 23 N. C., 404. “Erroneous and irregular judgments cannot be collaterally impeached, but stand until they are reversed or set aside. Jennings v. Stafford, supra. But a void judgment is no judgment, and may always be treated as a nullity.” A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exceptions. Chemical Co. v. Turner, 190 N. C., 471, 130 S. E., 154. Nor did the corporate defendant’s appearance by motion to vacate said judgment give life to that which was then a nullity. Such appearance put the corporate defendant in court, but only as a defendant with the right to answer to the merits, and not for the purpose of *820 validating a judgment previously entered cutting off sucb right. Motor Co. v. Reaves, 184 N. C., 260, 114 S. E., 175; Michigan Central R. R. v. Mix, 278 U. S., 492; 15 R. C. L., 700. In Lowman v. Ballard,, 168 N. C., 16, 84 S. E., 21, where service of summons was sought to be bad by sheriff reading summons to defendant over telephone, it was held that judgment entered in the cause should be set aside on motion and defendant allowed to answer. The motion of the corporate defendant to vacate the judgment by default and inquiry should have been allowed. Indeed, it may be doubted whether a contrary holding would stand the test of due process. Hassler v. Shaw, 271 U. S., 195; McDonald v. Mabee, 243 U. S., 90; Harkness v. Hyde, 98 U. S., 476; Markham v. Carver, 188 N. C., 615, 125 S. E., 409; Burton v. Smith, 191 N. C., 599, 132 S. E., 605. “The essential elements of due process of law are .notice and opportunity to defend.” Simon v. Craft, 182 U. S., 427; Daniels v. Homer, 139 N. C., 219, 51 S. E., 992. No judgment of a court is due process of law, if rendered without jurisdiction in the court, or without notice to the party” — Mr. Justice Gray in Scott v. McNeal, 154 U. S., 34. Compare Kauffman v. Wootters, 138 U. S., 285; York v. Texas, 137 U. S., 15. At one time in England the denial of due process was humorously styled Lydford Law, derived from Lydford, a village in Devonshire. A burlesque copy of verse on this town begins: “I oft have heard of Lydford Law, How in the morn they hang and draw, And sit in judgment after.” See Introduction Scott’s Minstrelsy of the Scottish Border. The one fatal circumstance, which is not to be overlooked, is, that no appearance of any kind was made by the corporate defendant before judgment cutting off its right to be heard on the merits. It was pointed out in York v. Texas, 137 U. S., 15 (two Justices dissenting), that the mere rendition of a judgment, pursuant to a Texas statute, did not deprive a defendant of his property without due process of law, since he was thereafter at liberty to enjoin its execution; that only by execution of the judgment, and not by its rendition, was the defendant’s property liable to be taken. But we are unwilling to say, in the absence of statute governing the matter, that a judgment by default and inquiry, admittedly void as to the corporate defendant for want of service or waiver of summons, is made alive against said defendant simply by motion to set it aside. With respect to the individual defendant who was duly served with . summons, it appears that he entrusted his case to one who is neither *821 a licensed nor a practicing attorney in this State, and employed no one wbo regularly practices in tbe courts of Currituck County, or of tbe First Judicial District, bence it would seem that bis failure to answer must be attributed to bis own negligence. Pailin v. Cedar Works, 193 N. C., 256, 136 S. E., 635; Stallings v. Spruill, 176 N. C., 121, 96 S. E., 890. Error.