Rodriguez v. . Rodriguez

Seawell, J. It appears from the record that the judgment promulgated by Judge Armstrong as of November 30, 1943, was prepared in the form of an agreement signed by the parties and their counsel, to be presented and signed as a consent judgment. Before such presentation the defendant changed her mind, employed other counsel, and withdrew her consent. She protested at the time the judgment was rendered and signed. In many respects the judgment by consent is treated as a contract between the parties. Cason v. Shute, 211 N. C., 195, 189 S. E., 494; Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209; Morris v. Patterson, 180 N. C., 484, 486, 105 S. E., 25; Bank v. Commissioners, 119 N. C., 214, 226, 25 S. E., 966. The power to render such judgment depends upon the subsistence of the consent at the time the agreement receives the sanction of the court, or is rendered and promulgated as a judgment. Contemporaneously with signing the judgment, Judge Armstrong found facts, amongst which it is stated that the parties agreed that the judgment might be signed as of 30 November, 1943. It was signed at Chambers in Mecklenburg County on 8 December, 1943. It is clear, however, that this agreement was prospective and that at the time it was made no judgment had been rendered, nor was any judgment rendered until the day of signature- — after the consent of the defendant had been *282 withdrawn and after the court had notice of that fact. "Without such consent the judgment is void. It may he added that even had the defendant not withdrawn her consent, it could not be made effectual in curing the defect in service and thereby validating the judgment, if such an amendment could ever be conceived to have that result, since that would be, in practical effect, consenting to a divorce — which is diametrically opposed to public policy. Since the judgment, in all of its provisions — including plaintiff’s motion to amend the affidavit on which service by publication was secured, and defendant’s motion to vacate the judgment — is formally and actually made to depend upon such consent, which was withdrawn before its rendition, no hearing has been had, in the legal sense, upon .any of the matters dealt with in the judgment. If no more appeared, no doubt the proper course would be to remand the case for a hearing upon the motions. But the defendant has asked leave to file an answer to the original complaint, upon which the plaintiff seeks divorce. By so doing she has cast aside the cloak of special appearance assumed for the purpose of objecting to the jurisdiction and has, in effect, entered a general appearance. McIntosh, Practice and Procedure, p. 324; Dailey Motor Go. v. Reaves, 184 N. C., 260, 114 S. E., 115; Scott v. Mutual Reserve Fund Life Assn., 137 N. 0., 515, 50 S. E., 221. Her request for leave to answer, as a matter of course, supersedes her motion to dismiss the action for want of service of summons, and renders academic the plaintiff’s motion to amend the procedure in procuring service by publication. But it does not, by relation back, cure any prior fatal defect in the proceedings with reference to notice, or validate the original judgment or decree of divorce entered upon such defective service. According to the practice, leave to file answer may be granted in the court below or, in proper cases, in this Court. Whether it should be done here may depend upon the facts of record as we find them to be, when examined upon the merits of the motion. Whether the defendant was, or was not, a resident of the State of North Carolina, or was, or was not, to be found within the State at the time the action was instituted and service of process was attempted is not a matter of present inquiry. The jurisdiction of the court, where substituted service by publication is sought, necessarily depends, in the first instance, upon the factual representations made to it under statutory procedure. The provisions of Gr. S., sec. 1-98, require that it must appear by affidavit to the satisfaction of the court, or judge thereof, that the person on whom the service of summons is to be made “cannot, after due diligence, be found in the State” — and this specifically applies to actions for divorce. See sec. 5. Since this method of giving notice is *283 out of tbe ordinary, a strict compliance with the statute bas always been deemed to be necessary. Averment as to due diligence is jurisdictional in its character, and its absence is a fatal defect. Davis v. Davis, 179 N. C., 185, 102 S. E., 270; Sawyer v. Camden Run Drainage District, 179 N. C., 182, 183, 102 S. E., 273; Grocery Co. v. Collins Bag Co., 142 N. C., 174, 55 S. E., 90; Denton v. Vassiliades, 212 N. C., 513, 193 S. E., 737; Fowler v. Fowler, 190 N. C., 536, 540, 130 S. E., 315; Groce v. Groce, 214 N. C., 398, 399, 199 S. E., 388; McLeod v. McLeod, post, 856. While such an affidavit may be amended, and ordinarily in that respect comes under the provisions of G. S., 1-163, such amendment will not validate a prior judgment rendered upon the defective service, which judgment is necessarily void because of want of jurisdiction. Due process of law is satisfied by notice and hearing — but they must come in that order. The defendant has, in contemplation of law, had no hearing. Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7. It follows that the original decree of divorce entered on 5 April, 1943,. by War lick, J., is void and of no effect; and the proceeding stands in the Superior Court of Mecklenburg County as it originally stood upon the issuance of the summons and filing of the complaint; except that the defendant has now entered a general appearance by asking leave to file answer. Returning now to the question whether such leave should be granted in this Court, we are of opinion that, partly because of the complications which have arisen in the case, and the necessity of avoiding repeated review, leave to file answer should be granted here. The defendant, therefore, has leave to file answer to the complaint, which may be done within thirty days after this opinion is handed down to the Superior Court of Mecklenburg County; the cause will then stand for trial in due course, or further proceedings had according to the practice of the court. Reversed and remanded.