Calmes v. . Lambert

Hoke, J., after stating the case. The Eevisal of 1905, sec. 431, provides that “every summons, addressed to the sheriff or other officer of any county other than that from which it issued, shall be attested by the seal of the court.” There are many cases in our court in which the expression is used that “process to another county without seal is void,” others speak of it as a “nullity.” McArter v. Rhea, admr., 122 N. C., p. 614; Taylor v. Taylor, 83 N. C., p. 116. If these expressions can be considered as in strictness correct, they are only so until the process is validated by amendment, for numerous decisions of this court on the subject hold that the defect suggested may be removed by amendment on application to the proper tribunal, both as to original and final process, and the amendment when made will validate all acts done under the process, in so far as it affects the original parties to the suit or record. *252 This course, and the effect of it, was suggested as to final process by Henderson, Chief Justice, delivering the opinion in the notable case of Seawell v. Bank of Cape Fear, 14 N. C., p. 279, and the suggestion was soon thereafter approved by express adjudication as to final process in Purcell v. McFarland’s heirs, 23 N. C., p. 34, and as to original process in Clark, admr., v. Hellen, 23 N. C., p. 421. The power of amendment as applied in these cases and now embodied and perhaps enlarged and extended in our statute, Revisal, 507, was sustained in the more recent case of Henderson v. Graham, 84 N. C., p. 496, in which the power of court to amend the summons was directly involved, and in which it was held: “It is error in the court to refuse to amend a summons upon the ground of a want of power. Whether the same should be amended is a discretionary matter and not reviewable. The authorities upon amendment of process (here, to allow clerk to affix his signature to summons) reviewed by Smith, C. J.” The very liberal and extensive power of amendment and the effect of it when made, approved in these cases, lead the Court in Vick v. Flourney, 147 N. C., pp. 209, 216, to speak of the defect as an irregularity, though the comment was made only with reference to the fact that the process could be amended in the discretion of the court. In the case at bar, whether the judgments were void, unless and until the defect was cured by amendment as the authorities seem to hold, or only voidable by reason of irregularity, in either case, we are of opinion that his Honor was right in setting them aside. In the first case, the question of permitting an amendment and the terms on which such an amendment should be allowed. Was entirely in his discretion, as held in Henderson v. Graham, supra. And in the second, that is, regarding the defect as an irregularity, the question of setting aside such a judgment is referred by our decisions to the sound legal discretion of the court. We must not be understood as holding that where an adult business man of sound mind and memory hears a summons properly read to him to attend a given term of the Superior Court and answer a complaint or judgment, will be taken against him, he can be relieved from such judgment on account of surprise or excusable *253 neglect under see. 274, Code, Revisal, sec. 513, because some local officer tells Mm that the summons is only a subpoena to testify in some other case. The section referred to, however, and the decisions under it, are not as a rule intended to be controlling in ease of an irregular judgment. It was passed primarily to regulate applications to set aside judgments which were rendered according to the course and practice of the court, and were in all respects regular. But in case of irregular judgments, different principles may be allowed to prevail; thus in Becton v. Dunn, 137 N. C., p. 559, on this subject, the Court held: “Section 274 of the Code, providing that a motion to set aside a judgment for ‘mistake, inadvertence, surprise or excusable neglect,’ must be made within one year, has no application to an irregular judgment, that is, one contrary to the course and practice of the court.” “3. A motion to set aside an irregular judgment need not be made within one year after rendition of same, but the trial judge may, in his discretion, vacate same upon a proper showing made within a reasonable time.” And delivering the opinion, it was said: “The authorities are all to the effect that an irregular judgment may be set aside at a subsequent term, independent of section 274. Wolfe v. Davis, 74 N. C., 597. This is not done as a matter of absolute right in the party litigant, but rests in the sound legal discretion of the court. It is always required that a party claiming to be injured should show that some substantial right has been prejudiced, and he must proceed with proper diligence and within a reasonable time.” The judgments rendered in the present case are at best irregular, and on the entire facts as found by the court and relevant to the inquiry we think that his Honor wisely and properly exercised the legal discretion conferred upon him by the law in setting them both aside, and the judgment of the court below is therefore Affirmed.