Currie v. Golconda Mining & Milling Co.

AlleN, J. The defendants are not entitled to relief on the ground of excusable neglect, because the motion was not made within twelve months from the rendition of the judgment (Clement v. Ireland, 129 N. C., 220; Ins. Co. v. Scott, 136 N. C., 157), nor under Eevisal, sec. 449, allowing a defendant against whom a judgment has been rendered, upon service by publication, to defend after judgment, upon good cause shown, because more than twelve months had elapsed after notice of the judgment before any notice of the motion issued. They must, therefore, rely upon the right to have the judgment set aside upon the ground that it is irregular. An irregular judgment is one rendered contrary to the course and practice of the courts, and'may be set aside within a reasonable time, and upon showing a meritorious defense. Scott v. Life Association, 137 N. C., 520. We must then inquire^into the regularity of the proceeding. The summons was duly served on the corporation under section 1243 of the Eevisal, and also by publication. The section of the Eevisal referred to provides for personal service of corporations “having property or doing business in this State,” by leaving a true copy of the summons with the Secretary of State, and it appears that the Golconda Company had property in the State, and that a copy of the summons was left with the proper officer on 19 March, 1910. A statute similar to this has been held valid. Fisher v. Ins. Co., 136 N. C., 222. The publication of the summons and attachment was not irregular, because commenced within thirty days from the time of issuing the summons (Best v. British and Am. Co., 128 N. *218 C., 351; Grocery Co. v. Bag Co., 142 N. C., 174, the last case overruling McClure v. Fellows, 131 N. C., 509), and it was not necessary that tbe service thereof should be complete ten days before the April term of court. Guilford County v. Georgia Co., 109 N. C., 310. The same principles apply to the service by publication on the defendant Allen, exceed in one particular, to which we will hereafter refer. The verification of the complaint is a substantial compliance with the statute, and it sufficiently appears that the plaintiff was sworn, and by an officer authorized to administer oaths. It was not necessary that it should be subscribed. Alford v. McCormac, 90 N. C., 151. As against the defendant Allen, the complaint alleges an express promise to pay a sum certain, and if there had been personal service of summons, the plaintiff would have been entitled to judgment by default final against him. Hartman v. Farrier, 95 N. C., 178; Scott v. Life Association, 137 N. C., 522. There was, however, no personal service on him, and as he was a nonresident, jurisdiction could only be had by levying the attachment on property belonging to him in this State, and when thus obtained, it would not authorize a personal judgment against him. Winfree v. Bagley, 102 N. C., 515; Goodwin v. Claytor, 137 N. C., 230; May v. Getty, 140 N. C., 318; Lemly v. Ellis, 143 N. C., 213. These cases fully sustain the propositions that, in the absence of an attachment levied upon property of a non resident within the State, that an attempt at service by publication is ineffective for any purpose, and that “the court acquires jurisdiction where an attachment has issued or the res has otherwise been brought within its control only to the extent that the res will satisfy the plaintiff’s recovery, and no general or personal judgment will be binding beyond that.” Lemly v. Ellis, supra. Applying these principles to the judgment against the defendant Allen, it must be held to be irregular, because a personal judgment was rendered against him, which might, however, *219 be treated as an adjudication of tbe amount found to be due, and not a judgment for its recovery (Goodwin v. Claytor, 137 N. C., 230), and for tbe further and stronger reason that the attachment was not levied on any property belonging to him, situate in this State. It is not alleged that the defendant Allen has any interest in the property of the Crolconda Company, and the only property belonging to him, referred to in the attachment,' is the debt of the company to him. He and the company are outside the State, and nonresidents, and the debt cannot be property of his in this State. The case of the G-olconda Company rests on different facts. The summons as to this defendant .was served by leaving a copy with the Secretary of State, and also by publication, and the attachment was levied on property of the defendant in this State. If, then, the complaint is sufficient to • sustain a judgment by default final, the judgment as to this defendant is regular, and otherwise not. As was said in Junge v. McKnight, 137 N. C., 286: “The plaintiff must be careful to draw his judgment,' when by default final, according to the right arising upon the case stated by the complaint, ‘because the defendant is concluded by the decree, so far at least as it is supported by the allegations of the bill.’ If the decree or judgment do not conform to this well-settled principle, if it give relief in excess of or of a different character from that to which the plaintiff is entitled upon the allegations of fact in the complaint, the court will promptly set it aside upon application. It thus becomes important that the pleader, when he wishes to' take a judgment by default final, set forth clearly the facts upon the admission of which, by failure to answer, he bases his right to relief, so that the court may, upon an inspection of his complaint, adjudge his rights to correspond with such facts.” The complaint alleges a promise upon the part of Allen to pay the plaintiffs $5,000 upon certain conditions, and that the conditions have been performed; that the defendant the Golconda Company has promised to pay the said Allen $18,000, under a contract made for the benefit of the plaintiffs, to the *220 amount of tbeir debt; and tbat tbe said Allén lias.assigned to tbe plaintiffs said debt to tbe extent of tbeir claim against Allen, but it does not allege any promise, upon tbe part of tbe Golconda Company, to pay tbe plaintiffs any sum, or tbat it bad notice of tbe assignment to tbe plaintiffs. If so, tbe amount for wbicb tbe Golconda Company would be liable to tbe plaintiffs is, of necessity,, uncertain, as tbe debt to Allen was contracted in 1906, and under tbe facts stated its liability would be determined as of tbe time tbe attacbment was levied. Tbe contract between tbe said Allen and tbe other defendant is also made a part of tbe complaint, and it appears from an inspection of it tbat provision was made therein for tbe payment of said sum of $18,000, and there is no allegation as to what was done under it. If tbe amount for wbicb tbe defendant would be liable is not made certain by tbe complaint, tbe plaintiffs were not entitled to judgment by default final therein, and such judgment is irregular. Witt v. Long, 93 N. C., 390; Battle v. Baird, 118 N. C., 854; Jeffries v. Aaron, 120 N. C., 169; Stewart v. Bryan, 121 N. C., 46. We conclude, therefore, tbat there is no error in tbe judgment rendered; but we note tbat tbe property seized under tbe attachment has been sold, and a deed made to tbe purchaser, who is not a party to this motion, and will not be prejudiced thereby. If be is an innocent purchaser for value, it may be tbat tbe judgment would be set aside as .between tbe parties, and retained for bis protection, as was done in Harrison v. Hargrove, 120 N. C., 96; and in determining bis rights, tbe fact tbat Allen was president of tbe Golconda Company, wbicb appears from affidavits on file, and tbat both defendants knew of tbe pendency of tbe action before tbe judgment was rendered, and tbat neither moved in tbe matter for more than twelve months, would have an important bearing. It is advisable tbat be be made a party. Tbe defendants, Allen and tbe Golconda Company, in tbeir application to have tbe judgment set aside, asked to be allowed to answer, and this is equivalent to a general appearance by both. Scott v. Life Association, 137 N. C., 515. Affirmed.