Nall v. . McConnell

Claeksokt, J. In Blackmore v. Winders, 144 N. C., 212 (215-16), we find: “It may be said that a complaint cannot be overthrown by a demurrer unless it be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartificially it may have been drawn, or however uncertain, defective, or redundant may be its statements, for, contrary to the common law rule, every reasonable intendment and presumption must be made in favor of the pleader. It must be fatally defective before it will be rejected as insufficient.” N. C. Code, 1935 (Michie), sec. 535; In re Trust Co., 207 N. C., 802. See S. v. McCanless, 193 N. C., 200 (206); Bowling v. Bank, 209 N. C., 463 (469). On this record, for the purpose of this demurrer, we will only consider the plea of estoppel by judgment. On this aspect the demurrer of plaintiff cannot be sustained. The plaintiff’s demurrer is based on several grounds: (1) That the judgment appointing a substitute trustee was void for the reason that the statutory time for the running of the summons was not given. We cannot so hold. The alleged defect in the summons served on plaintiff in the petition before the clerk, of G. R. McConnell, owner of the unpaid note, to have a substituted trustee for A. W. Horn, deceased, is not well taken by the plaintiff. The summons is full and plenary. The summons served on plaintiff gave full notice to her of the purpose of the proceedings, and also in it made reference “in the petition filed.” N. C. Code, 1935 (Michie), sec. 753, latter part, is as follows: “And provided further, that the summons in special proceedings shall command the sheriff or other proper officer to summons the defendant, or defendants, to appear and answer the complaint of the plaintiff within ten (10) days after its service upon defendant or defendants in *261 lieu of thirty (30) days, as required in civil actions.” The summons was served on 11 November, 1930; the judgment was signed 17 November, 1930. The case of Stafford v. Gallops, 123 N. C., 19, is a suit involving the appointment of a substitute trustee where the original trustee had died. In this ease the summons was served on 11 December, and judgment was taken on 19 December, 1891, and the defendants took the position that the judgment was void, as they had not had the 10-day notice required. The Court said, at pp. 23-34: “When the time between service and the return day of the summons is less than the time allowed by the Code, the clerk is not bound to dismiss the action, but should allow the time allowed by the Code to the defendant for an appearance. Guion v. Melvin, 69 N. C., 242. The object of service of process is to advise the defendant of the plaintiff’s action, and that he must appear at the time and place named and make his defense, and in default therein judgment will be prayed. If he attends, as he should, he can defend on the merits or have irregularities corrected. Railing in this does not affect the jurisdiction or judgment as long as it stands unreversed. A service of four days notice, when the law requires five, is sufficient to support a justice’s judgment. Ballinger v. Tarvell, 85 Am. Dec., 527; 1 Freeman, supra (1 Freeman on Judgments, 4th Ed.), sec. 126. Applying these principles to the present case, his Honor committed error in excluding the judgment of the clerk appointing a trustee. That judgment, although irregular, is valid until reversed or vacated by a direct action, and cannot be collaterally attacked.” “If a judgment is irregular, the remedy is by a motion in the case made within a reasonable time; if erroneous, the remedy is by appeal.” Finger v. Smith, 191 N. C., 818 (820). (2) “That said judgment was void for the reason that the summons failed to contain a notice stating in substance that if the defendants failed to answer, the plaintiff would apply to the court for the relief demanded in the complaint.” We have heretofore said that the summons gave full notice to plaintiff — we copy same: “State of North Carolina, Macon County — In re A. W. Horn, Trustee: State of North Carolina: To the sheriff or other lawful officer of Macon County, greetings: You are hereby commanded to summon Rebecca C. Nall to be and appear before the undersigned clerk Superior Court of Macon County, at his office in the courthouse in Eranklin, N. C., on Monday, 17 November, 1930, then and there answer the petition of G. R. McConnell and show cause why a trustee should not be appointed in the place and stead of A. W. Horn, trustee, deceased, in a certain deed of trust dated 1 October, 1925, and referred to in the petition filed. *262 TMs 10 November, 1930. Frank I. Murray, C. S. C. — A. W. Horn, Trustee. Rec’d 11 Hoy., 1930. Served by delivering copy and reading notice, 11 November, 1930. O. I. Ingram, Sheriff — C. C. Potts, D.S.” N. C. Code, supra, sec. 416, in part, is as follows: “And must contain a notice stating in substance that if the defendant or defendants fail to answer the complaint within the time specified the plaintiff will apply to the court for the relief demanded in the complaint; and must be dated on the date of its issue.” We think the summons substantially complied with the statute. The plaintiff could readily understand what the summons meant; if she needed more information, she could have examined the “petition filed.” Id cerium est quod cerium reddi poiesi. That is certain which can be made certain. 2 Bl. Comm., 143; 1 Bl. Comm., 78; 4 Kent Comm., 462; Broom Max., 624. This notice was served on 11 November, 1930. This action was not brought until years afterwards — the date of the summons does not appear; in the record the stipulation of counsel is as follows: “That the summons and organization of the court be not copied in this record.” The complaint is “verified 10 August, 1934.” (3) That said judgment was void for the reason that the personal representative of the deceased trustee was not made a party to the action brought for the purpose of appointing a substitute trustee.” We are not unmindful of N. C. Code, supra, secs. 2578 and 2583. We think the contention of plaintiff sets forth a “speaking demurrer.” The question of real party in interest may only be made by affirmative allegations. Morrow v. Cline, ante, 254. The plaintiff was sui juris and had full notice and opportunity to be heard. It is unfortunate for her, but she lost by her laches. For the reasons given, the judgment must be Affirmed.