Downing v. . White

Stacy, 0. J. This is the same case that was before us on a procedural question at the Spring Term, 1934, reported in 206 N. C., 567, 174 S. E., 451. It is elementary that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, a judgment rendered against him is void for want of jurisdiction. Dunn v. Wilson, 210 N. C., 493; Guerin v. Guerin, 208 N. C., 457, 181 S. E., 274; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 238; Clark v. Homes, Inc., 189 N. C., 703, 128 S. E., 20; Pinnell v. Burroughs, 168 N. C., 315, 84 S. E., 364; Card v. Finch, 142 N. C., 140, 54 S. E., 1009; Bernhardt v. Brown, 118 N. C., 700, 24 S. E., 527, 715; Armstrong v. Harshaw, 12 N. C., 187. True, “where it appears from the record that a person was a party to an action, when in fact he was not, the legal presumption that he was properly a party is conclusive until removed by a correction of the record itself, by a direct proceeding for that purpose.” Smathers v. Sprouse, 144 N. C., 637, 57 S. E., 392; Doyle v. Brown, 72 N. C., 393. In other words, where it affirmatively appears from the record in a case that one was duly served or made a party thereto, the remedy for establishing the *42 fact of nonserviee or “false return,” if such, be the fact, is by motion in the cause and not by an independent action. Davis v. Brigman, 204 N. C., 680, 169 S. E., 421; Long v. Rockingham, 187 N. C., 199, 121 S. E., 461; King v. R. R., 184 N. C., 442, 115 S. E., 172; Eure v. Paxton, 80 N. C., 17. Here, however, it does not appear that Harriet Dix was ever a party, or attempted to be made a party, to the action of “Bridger Corporation v. Dix.” The papers have been lost, with the exception of the judgment, and the only title to the judgment is “Bridger Coloration v. Dix.” So, under the circumstances, it not appearing that Harriet Dix was ever a party to said proceeding, we apprehend her right presently to attack the judgment rendered therein as a cloud on her title ought not to be denied. Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306; Truelove v. Parker, 191 N. C., 430, 132 S. E., 295. ETothing was said in Clark v. Homes, Inc., supra; Pinnell v. Burroughs, supra; Bailey v. Hopkins, 152 N. C., 748, 67 S. E., 569; Hargrove v. Wilson, 148 N. C., 439, 62 S. E., 520; Rackley v. Roberts, 147 N. C., 201, 60 S. E., 975; Brickhouse v. Sutton, 99 N. C., 103, 5 S. E., 380; or Sumner v. Sessoms, 94 N. C., 371, which militates against this position. The laboring oar, of course, is with the plaintiff, as a prima facie presumption of jurisdiction arises from the exercise of it, and throws the burden of disproving its existence upon the party denying it. Starnes v. Thompson, 173 N. C., 466, 92 S. E., 259. Should the papers be found, and the fact of nonservice appear on the face of the record, plaintiff’s right to attack the judgment would ipso facto be established. Graves v. Reidsville, 182 N. C., 330, 109 S. E., 29. Non conslat that this right should be deiiied simply because the papers have been lost. Pinnell v. Burroughs, supra; Massie v. Hainey, 165 N. C., 174, 81 S. E., 135; Card v. Finch, supra. In Bernhardt v. Brown, supra, there is an observation to the effect that “in the absence of the transcript of the proceedings therein, the presumption of law is that it is regular in all respects, including service,” but this was said in reference to one who appeared to be a party to such proceeding, and not to one who did not so appear, nor did it have reference to lost records. It is well established here and elsewhere that “a judgment rendered by a court against a citizen affecting his vested rights, in an action or proceeding to which he is not a party, is absolutely void, and may be treated as a nullity whenever it is brought to the attention of the court.” Johnson v. Whilden, 171 N. C., 153, 88 S. E., 223. Again, in Doyle v. Brown, supra, it was held that “when a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him is not simply voidable, but void, and may be so treated whenever and wherever offered, without any direct proceeding to vacate it.” *43 Similarly, in Condry v. Cheshire, 88 N. C., 375, it was Reid (as stated in third headnote) : “A judgment against a party upon whom no service of process has been made nor appearance entered, is absolutely void, and may be so treated without any direct proceeding to vacate it.” In this view of the matter, considering the present state of the record, it would seem the plaintiff is entitled to question the judgment in the Bridget Corporation case, to show its invalidity, if she can, and if found to be void, to have it removed as a cloud on her title. Johnson v. Whilden, supra; Oliver v. Hood, Comr., 209 N. C., 291, 183 S. E., 657. Of course, if, upon the discovery of the lost papers in said suit, it should appear that the plaintiff was duly or ostensibly made a party thereto, a different principle would prevail. Davis v. Brigman, supra; Dunn v. Wilson, supra. Rew trial.