Economy Electric Co. v. Automatic Electric Power & Light Plant

Stacy, J., after stating the case: At the close of plaintiffs’ evidence, and again at the close of all the evidence, defendant Automatic Electric Power and Light Plant, and Ludington State Bank, intervener, moved for judgment as of nonsuit, and the refusal of the court to allow their motion is the ground of the first exception. In support of this exception, defendant and intervener contend that the plaintiffs have obtained jurisdiction of their property and thereby induced them to come into court by fraud or other improper means, and that the only adequate remedy which the law affords an aggrieved party in such a case is to set aside the process and dismiss the action. 7 R. C. L., 1040. It is alleged that the plaintiffs fraudulently and deceitfully persuaded the Automatic-Electric Power and Light Plant to send the drafts in question with bills of lading attached, through the intervening bank, into this jurisdiction so that plaintiffs might pay them, or take them up, immediately levy an attachment against the proceeds of such collection in the hands of the collecting bank, and thereby force the defendants to litigate the matters in dispute in the courts of this State. Where service of process is procured by fraud, that fact may be shown, and, if shown seasonably, the court will refuse to exercise its jurisdiction and turn the plaintiff out of court. The law will not lend its sanction or support to an act, otherwise lawful, which is accomplished by unlawful means. Chubbuck v. Cleveland, 37 Minn., 466 (S. c., 5 Am. St. Rep., p. 864). Such a fraud is one affecting the court itself and the integrity of its process. Larned v. Griffin, 12 Fed. Rep., 590; Gilbert v. Vanderpool, 15 Johns (N. Y.), 242; 1 Wait’s Practice, 562. The objection, strictly, is not that the court is without jurisdic *537 tion, but that it ought not, by reason of the alleged fraud, to take or to bold, jurisdiction of the action. Wheelock v. Lee, 74 N. Y., 495; Higgins v. Beveridge, 35 Minn., 285. Also, Steele v. Bates, 16 Am. Dec., 723, and note. The defendant may appear specially and object to the jurisdiction when the court will refuse to assume it, and will dismiss the action or award appropriate relief, as we have said, for the law will not lend its countenance or its aid to further an act, otherwise lawful, which is accomplished by unlawful and fraiidulent means. Townsend v. Smith, 47 Wis., 623; 32 Am. Rep., 793; Bigelow on Fraud, 166, 171, and cases; Ilsley v. Nichols, 12 Pick., 270, 276; 22 Am. Dec., 425; Sherman v. Gundlach, 37 Minn., 118. In the instant case, however, the Automatic Electric Power and Light Plant ‘and the Ludington State Bank, intervener, have clearly and undoubtedly waived-their right to dismiss the case for the alleged fraud of the plaintiffs by appearing herein without objection of any kind and actually pleading to the merits. The jurisdiction of the court has already been exercised and the case heard. It would be useless to restate the reasons for this result, as the question is fully treated and discussed, and the law in regard to it settled in the cases of Motor Co. v. Reaves, 184 N. C., 260, and Scott v. Life Asso., 137 N. C., 516. See, also, Hatcher v. Faison, 142 N. C., 364; 32 Cyc., 527, and the following cases upon the question that a general appearance cures all defects and irregularities in the process: Wheeler v. Cobb, 75 N. C., 21; Penniman v. Daniel, 95 N. C., 341; Roberts v. Allman, 106 N. C., 391; Moore v. R. R., 67 N. C., 209; Grant v. Grant, 159 N. C., 528; Harris v. Bennett, 160 N. C., 339. In Moore v. R. R., supra, Justice Rodman said: “The defendant nevertheless appeared and answered in bar. The irregularity- was thereby waived. If no summons at all had been issued, .the filing of a complaint and answer would have constituted a cause in court.” His Honor was correct in holding that the burden was on the inter-vener to make good its claim and to show title to the property attached. Sterling Mills v. Milling Co., 184 N. C., 461; Mangum v. Grain Co., 184 N. C., 181, and cases there cited. After a careful perusal of the record, we have found no material or reversible error presented by any exception, and this will be certified. No error.