Massie v. . Hainey

IIoke, J., after stating tbe case: There are several decisions of this Court in support of tbe position that a final judgment terminating a cause may not be vacated or materially altered at. a subsequent term except by an independent action; a principle more especially insistent where tbe judgment has been in whole or in part performed, as in England v. Garner, 84 N. C., 213; but this must ordinarily be understood in reference to cases where it is sought to disturb tbe judgment by reason of facts dehors tbe record and affecting tbe substantial rights of tbe parties as between themselves. Even in cases of fraiid, where tbe general principle is more frequently instanced, it has been held *177 not to apply when the facts only tended to establish a fraudulent imposition on the court in procuring the judgment. Roberts v. Pratt, 152 N. C., 731. In that case the defendant was endeavoring to resist enforcement in this State of a judgment rendered in the courts of South Dakota, on the ground of fraudulent imposition on that court, whereby the judgment had been procured. It appeared that defendant had appeared in the South Dakota court and moved to set aside the judgment on the same ground, and the motion had been formally denied. In holding that defendant was concluded on the issue of fraud' by the action of the South Dakota court in making adverse disposition of his motion, this Court said: “Courts administering justice according to course and practice of the common law would not, as a rule, entertain a proceeding to disturb a final judgment by motion made after the term in which it was rendered.” To effect such a purpose a bill in equity was generally .required. Brinson v. Schultan, 104 N. C., 410; Mock v. Coggins, 101 N. C., 366. The rule stated, however, does not apply when on the face of the record, or otherwise, it was made to appear that a judgment had been entered contrary to the course and practice of the court, including also all eases where errors would be corrected by writs of error coram nobis or vobis. The scope and purpose of these writs, it seems, being the same, the former 'being the proper designation when the proceedings were heard in the Court of King’s Bench, where the monarch was presumed to 'be present, and the second when the matter was carried on in courts of lesser dignity, but having full jurisdiction. The power to correct errors by means’ of these writs was very generally regarded as inherent in common-law courts of general jurisdiction; and wherever it formerly prevailed the same results may be obtained in modern practice by means of a motion. In systems like ours, where the law and equity are combined and relief administered in one and the same jurisdiction, the power is universally exercised, and, when not regulated by statute, there ’is a disposition and tendency to extend its scope and application. *178 Brinson v. Schultan, supra; Craig v. Wroth, 47 Md., 281; 5 Enc. Pl. and Pr., pp. 27, 28, 30; 7 Enc. U. S. Supreme Court Rep., 592. In 7 Ene. S. C. E., it is said: “It is believed to be tbe settled modern practice that in all instances in which* irregularities could formerly be corrected upon a writ of error corarn vobis or audita querela, the same objects may be effected by motion to the courts as a mode more simple, more expeditious, and less fruitful of difficulty and expense.” It may be well to note that the authority referred to in this citation, erroneously stated as Brinson v. Schultan, 104 N. C., should be Bronson, v. Schulten, 104 U. S., 410, and an examination of that case will be found in general support of the position as stated. Under our former system, these writs referred to had recognized place (Williams v. Edwards, 34 N. C., 118, and Tyler v. Morris, 20 N. C., 487), and there is direct authority elsewhere for the position that they afforded the proper method for obtaining relief when a judgment had been' rendered against a party without notice. Holford v. Alexander, 12 Ala., 280; Wyme v. The Governor, 9 Tenn., p. 149; Jeffrey v. Fitch, 46 Conn., 601. As we have just seen, relief in such cases is now obtained by motion in the cause, as being the more simple and expeditious remedy, and, accordingly, it is now very generally held that, where a court has entered judgment against a party without having acquired.jurisdiction, either by failure to serve process upon him or because of the institution of a suit entirely without authority, relief may be obtained by motion in the cause at the same or subsequent term, provided there has been no laches or other interfering principle. If this lack of jurisdiction appears of record, the judgment may be treated as a nullity when and wherever- relied upon; but in most instances, and this is true where a party, though without authority, appears of record as plaintiff, it is both desirable and necessary that relief should be obtained by direct proceedings, the appropriate method, under our present system, being as stated, by motion in the cause. Rackley v. Roberts, 147 N. C., 201; Flowers v. King, *179 145 N. C., 234; Grant v. Harrell, 109 N. C., 78; Sutton Schonwald, 86 N. C., 198; Yeargin v. Wood, 84 N. C., 326; Doyle v. Brown, 72 N. C., 393; Black on Judgments, sec. 307. In Doyle v. Brown it was beld, as more directly relevant to tbe question presented: “If a record shows one to be plaintiff when in fact be was not, it stands as where the record shows one to be defendant when he was not. In both cases the record stands till corrected by direet proceedings for the purpose.” In the present ease the affidavits offered by the plaintiffs tended to show that the suit in which defendant had obtained a judgment against them had been instituted without authority, and that they had never in any way profited by the judgment nor done anything to ratify it, and, under the authorities cited and on motion properly entered, his Honor should have considered the evidence offered and rendered decision upon it. We are not inadvertent to the position also suggested in plaintiff’s motion, that the judgment was obtained against them by reason' of surprise, excusable neglect, etc., and that Under the statute an application of this character must be preferred within one year from the time of judgment entered. But the statute and the limitations established by it are properly held to apply when the judgment is otherwise in all respects regular, the court having jurisdiction of the parties, and does not extend to cases where no jurisdiction has ever been acquired over the moving party. Calmes v. Lambert, 153 N. C., 248. For the error indicated, the judgment will be set aside and the cause remanded, that the same may be further considered. Error.