Graves v. . Reidsville

*332 Hoice, J. It is the accepted principle here and elsewhere that a judgment in personam without voluntary appearance or service of process within the jurisdiction is void, and where the fact appears on inspection of the record, such a judgment may be treated as a nullity, or it will be set aside on motion and the party charged allowed to make his defense. And where the lack of service does not so appear, but is established, the party affected may have the same set aside on motion in the cause, that his defense may be considered and passed upon. Herndon v. Autry, 181 N. C., 271; Stocks v. Stocks, 179 N. C., 285-288; Johnson, Trustee, v. Whilden, 171 N. C., 153; Massie v. Hainey, 165 N. C., 174; Flowers v. King, 145 N. C., 234. The same principle, both as to the right and the procedure, prevails in reference to judgments in a justice’s court as well as in courts of more extended jurisdiction. Herndon v. Autry, supra; Lowman v. Ballard, 168 N. C., 16; Ballard v. Lowry, 163 N. C., 488; King v. R. R., 112 N. C., 318; Whitehurst v. Transportation Co., 109 N. C., 342. The position is not affected because there may be allegations and evidence of fraud presented. The gravamen of the application is the failure of service of process showing an entire lack of jurisdiction, and the court that has unwittingly countenanced the wrong is charged with the duty and has the power to right it. In such a case the fraud, and the evidence of it, is only an incident. The doctrine that a judgment can only be set aside for fraud by an independent action, of which a justice has no jurisdiction, applies only to final judgments which are otherwise, in all respects, regular, and does not imevail in reference to judgments that are irregular, or which are void for want of jurisdiction by reason of nonservice of process. And so in reference to other principles of law, statutory and otherwise, urged upon our attention in support of his Honor’s ruling. In section 1500, rule 12, which provides that a judgment of a justice may be reheard when a party is absent from the trial and such absence is caused by sickness, excusable mistake or neglect of the party, and requiring that such an application be made in 10 days. And section 1530, 'which provides for an appeal from a justice’s judgment on notice given within 10 days, and if on process not personally served allowing 15 days after personal notice of the judgment, they all contemplate and apply to causes of which the court has acquired jurisdiction^ either by personal service or by attachment and publication, and do not affect a case like the present, which enables one to obtain relief from a judgment entered against him when the court, for lack of service, was without jurisdiction to make any orders in any way affecting his rights of person or property. In Lowman v. Ballard, supra, it was held, as stated, “That where a judgment before a justice of the peace is sought to be set aside by the defendant for lack *333 of service of summons, the remedy is by motion in the cause made before the court which rendered the judgment.” And speaking to the question the Court, in the opinion, said: “Both in the Superior and justices’ courts the statutory limits as to time within which motions of this character shall be made are cases where the proceedings are in all respects regular, and do not apply in cases where there is defective service of process or an entire absence of it,” citing Massie v. Hainey, 165 N. C., 174; McKee v. Angel, 90 N. C., 60. It may be well to note that if on investigation it should be made to appear that service of process had been made giving the justice jurisdiction of the appellant that would present the case in a different aspect and some of the positions urged for appellee may be made available in his favor. For the reason stated, the judgment of his Honor will be reversed, and the Superior Court will proceed to hear the motion on the affidavits and facts as properly presented. Eeversed.