Cates v. . Pickett

Davis, J., (after stating the facts). We think, by the well settled construction placed bjr this Court upon §387 of The Code, the irregularities in the proceeding and judgment sought to be set aside by the motion in this cause were cured, and there was no error in refusing to allow the motion. Owing to the great change in our judicial system and practice, caused by the adoption of The Code, there was much uncertainty as to the correct mode of procedure, and many irregularities resulted from a want of familiarity with the *26 new practice. Some legislation was absolutely necessary to cure these defects, and this Court has now frequent occasion to pass upon questions bordering on the shadowy line that separates proceedings and judgments absolutely void, from those that are irregular — some of them exceedingly so — but within the curative power of the Legislature. The proceedings and judgmentin this case are within both the letter and spirit of §387, and illustrate the justice of, and the necessity for its enactment. Under the old practice, it was quite common — in fact, the general practice — for the administrator to file his petition against the heir to make assets, and if an infant, without any service upon him, have a guardian ad litem appointed, who would accept service and answer for him. In this case, whether the acceptance of service by the infant defendant be treated as valid or null, there was a guardian ad litem appointed by the Court to defend her interest; he answered for her, and the Court proceeded to adjudicate the cause, which was clearly within its jurisdiction. Hare v. Holloman, 94 N. C., 14; Sumner v. Sessoms, 94 N. C., 371; Williams v. Williams, 94 N. C., 733; Fowler v. Poor, 93 N. C., 466; Williamson v. Hartman, 92 N. C., 236; England v. Garner, 90 N. C., 197; Howerton v. Sexton, 90 N. C., 581; Mauney v. Gidney, 88 N. C., 200; Johnson v. Futrell, 86 N. C., 122. This motion is based upon the affidavits of the husband,, not those of the defendant, made more than twelve years after the sale which it seeks to make void, and long after the property had passed by conveyance from the original purchasers to other persons. There is no allegation of any actual fraud, nor is the proceeding impeached for fraud, which would bring it within the saving of the proviso of §387. The irregularities which had grown out of the failure to comply with the provisions of chapter 17, §59 of Battle’s Revisal, as construed by the Court, were those which §387 was intended to cure; and, of course, if the provisions of that chapter had *27 .been complied with, as it is insisted by counsel for the defendant ought to have been done, there would have been no necessity for the remedial legislation. Moore v. Gidney, 75 N. C., 34; Allen v. Shields, 72 N. C., 504; Bass v. Bass, 78 N. C., 374; relied on, were all prior to the passage of §387, and it is more than probable that the construction placed upon the law in those cases, led to the enactment of that section. We will not consider the constitutional question presented by counsel for the defendant, for the power of the Legislature to pass the curative act, so far as it applies to this case, is well settled by this Court, which renders it unnecessary for us to discuss that point. The cases of Stancil v. Gay, 92 N. C., 462; Larkins v. Bullard, 88 N. C., 25; Morris v. Gentry, 89 N C., 248; Mathews v. Joyce, 85 N. C., 258; and other authorities cited by counsel for defendant, are distinguishable from this, in that, in those cases, there was either no service of process at all on the infant or guardian ad litem, or no appearance for the infant, or fraud, or other vitiating facts, that rendered the proceedings absolutely void, and not merely irregular. There was no error. Let this be certified. No error. Affirmed.