McKee v. . Angel

Ashe, J., after stating the case. The first judgment rendered by the justice in December, 1878, was clearly void as to *62 this defendant. The summons in a civil action before a justice of the peace must be directed to “any constable or other lawful officer.” Bat. Rev., ch. 63, §12. “But in criminal actions the warrant must be directed to the sheriff, coroner or any constable, and if no sheriff, coroner or constable can be found, the warrant may be directed to any person whatever who shall have power to execute the same within the county in which it is issued.” Bat. Rev., ch. 33, §97. This is the only extraordinary case in which a justice of the peace is authorized to depute one, who is not an officer, to execute process. Marsh v. Williams, 63 N. C., 371; Garlick v. Jones, 3 Jones, 404. See also State v. Barefoot, 89 N. C., 565. Judgments are either irregular, erroneous or void. Irregular judgments are such as are entered contrary to the course and practice of the court. An erroneous judgment is one that is rendered contrary to law. A void judgment is one which has only the semblance of a judgment, as if rendered by a court having no jurisdiction, or against a person who has had no notice to defend his rights. Stallings v. Gully, 3 Jones, 344; Armstrong v. Harshaw, 1 Dev., 187; Jennings v. Stafford, 1 Ired., 404. Erroneous and irregular judgments cannot be collaterally impeached, but stand until they are reversed or set aside. Jennings v. Stafford, supra. But a void judgment is no judgment, and may always be treated as a nullity (Stallings v. Gully, supra), and unlike irregular and erroneous judgments, affords no protection to officers or others acting under it, so that if an execution had been issued upon the judgments rendered against the defendant in 1878, and had been levied upon his property, it would have given no protection to either the plaintiff or the officer, and in an action upon such a judgment the fact of its nullity is open to the defense of the defendant, that he owed nothing. “ Nil debet,” under the former practice. The justice seems to have laid some stress upon the fact that the defendant had notice of the judgment, but even if he had *63 that was not sufficient to make him a party so as to conclude him by the judgment. He had the right to require that he .should be made a party to the action by the legal service of process, and where the summons was served by one who had no authority to serve it, it was as if no service had been made, and he had the legal right to disregard it. But the question here arises, how is the defendant to avoid the judgment ? There is no doubt that as soon as he discovered that such a judgment had been rendered against him, he might have availed himself of the remedy of a reeordari in nature of a writ of false judgment. Morgan v. Allen, 5 Ired., 156. But he has failed to resort to that remedy, and has had recourse to a motion before the justice who made the judgment to vacate it. Was it in the power of the justice to do that? If it was, it was clearly his duty to do so. In the case of Hooks v. Moses, 8 Ired., 88, where an action ■was brought before a justice of the peace upon a former judgment rendered by a justice, the defense set up by the defendant was, that he was not summoned to appear at any particular time or place, when the judgment was rendered against him. Chief-Justice RuffiN, speaking for the court, said: “Doubtless those are proper grounds for impeaching the judgment, but that must be done directly upon an application to the magistrate, or to a higher tribunal, to set it aside or to reverse it for that cause.” That was done in this case. As the first application in April, 1883, was made and acted upon by the justice without notice to the plaintiff, the justice very properly treated his judgment at that time as a nullity; but the motion was renewed.by the defendant in May following, and the justice refused to set aside the judgment from which the appeal was taken, and His Honor in the superior court adjudged that the justice proceed to enter judgment vacating the original judgment as to the defendant Angel, and also the judgment upon the motion to set aside original judgment; While we do not think His Honor had the power to adjudge that the justice should enter the judg *64 ment as directed, we must consider his judgment as substantially reversing the judgment of the justice, and to that extent it is sustained. With this modification, the judgment of the superior court is affirmed. Modified and affirmed.