Rutherford v. Ray

OoNNOR, J. The action is brought pursuant to the provisions of chapter 6, Laws 1893; Revisal, sec. 1589. This statute was intended, and properly framed for that purpose, [256] to permit any person to institute an action against any other person claiming an adverse interest in land to have his title quieted and any cloud thereon removed. The purpose of the statute was to avoid the difficulties encountered by plaintiff in Busbee v. Lewis, 85 N. C., 332. The complaint attacks the validity of the judgment because of feme plaintiff’s coverture. She encounters the difficulty in this aspect of the case that it does not appear ux^on the face of the record in the case of Poe v. Rutherford in the justice’s court that the feme xolain-tiff was under coverture, nor is there any jfiea of coverture. This was necessary to enable the feme plaintiff to attack the judgment collaterally. Neville v. Pope, 95 N. C., 346; Green v. Ballard, 116 N. C., 146. We concur with defendants that, in the absence of any indication on the record that Nancy Rutherford was a married woman or of any plea of coverture, the judgment is not void. Certainly it is not so against a stranger who purchases land sold under an execution issued upon it. The counsel for defendants insist that we are confined to the objection made by plaintiffs, and that, failing to sustain this contention, we should reverse the judgment. The plaintiffs, on the contrary, contend that an inspection of the record in the case of Poe & Co. v. Rutherford discloses, that the justice never acquired any jurisdiction of the parties. We think it our duty in such a case to examine the entire record, and if any fatal defect going to the jurisdiction is disclosed to so adjudge it. There are matters pertaining to the mode of procedure, admissibility of testimony and such like questions raised by rulings of the court which can be presented only by exceptions duly taken during the trial. The feme xffaintiff insists that the justice never acquired jurisdiction of her person, the summons having been issued to a 'county other than that in which she lived. It seems that chapter 63, section 50, Bat. Rev., as construed in Sossamer v. Hinson, 72 N. C., 578, authorized a justice of the peace, “when one or more of the defendants resided oul of his [257] county,” to issue summons to sucb county, etc. As noticed in Lilly v. Purcell, 78 N. C., 82, tbe law was changed by the act of 1876-’77, ch. 287, by providing that “No process shall be issued by any justice of the peace to any county other than his own unless one or more bona fide defendants shall reside inside of his county and one or more bona fide defendants shall reside outside his county, in which case only he may issue process to any county in which such nonresident defendant resides.” The statute in this form was made section 871, The Code 1883, and so continued without amendment until incorporated into section 1447 of the Revisal 1905, when the summons was issued and served on the present feme plaintiff in the action of Poe & Co. v. Rutherford. Was the judgment, in the absence of any appearance by her, void or only irregular? If the justice acquired jurisdiction of the person, and the only objection to his procedure was that the venue was wrong, we concur with the defendants’ counsel that it cannot be attacked in- this action. The distinction between process running out of the Superior Courts, having in respect to the counties of the State general jurisdiction, and from a justice’s court, with limited jurisdiction, is obvious. In the former an action brought in some other than the proper county may be removed or, upon failure of defendant to- ask for an order of removal, tried in the county in which the action was brought. It is a question of venue and not of jurisdiction. Revisal, sec. 425. A justice, having no jurisdiction to issue process running out of his county, is confined to the statutory method of acquiring jurisdiction of the person. The language of the statute expressly restricts his power to acquire jurisdiction by sending process out of his county unless one or more bona fide defendants reside in and one or more reside out of the county. In the record before us it is obvious that no defendant in the case resided in Cumberland County. The justice therefore had no power to issue summons to Robeson County, and therefore acquired no jurisdiction of the per258 sons of the defendants by doing so. It is elementary that a judgment in personam against a person wbo is sui juris, when no process has been served or service accepted and no voluntary appearance is made, and these facts appear on the record, is void and may be attacked collaterally. Doyle v. Brown, 12 N. C., 393; Whitehurst v. Transportation Co., 109 N. C., 342, and many other cases. It is apparent from the record that no such summons as the justice had authority to' issue was served upon defendants; hence no jurisdiction of their persons was acquired and the justice had no power to render the judgment. It is suggested by the learned counsel for defendants herein that the action to enforce a. lien for material furnished for building is a proceeding quasi in rem and that the general statutory provisions regarding jurisdiction of the person do not apply. In Smaw v. Cohen, 95 N. C., 85, it is held that the justice has jurisdiction of an action to enforce a lien against the property of a married woman if the sum demanded is less than $200. This decision is based upon the language of the statute. It will be observed that the statute uses the words “according to- the jurisdiction thereof.” It cannot be that the Legislature intended by this indirect method to extend the jurisdiction of justices of the peace to issue summons, in actions to enforce liens, to any county in the State. We think that sufficient force was given the language of the statute in the enlargement of their jurisdiction by the decision in Smaw v. Cohen, supra.. In respect to the statutes limiting their jurisdiction in issuing summons to other counties no change could have been contemplated or made. The statement of the case in McMinn v. Hamilton, 77 N. C., 301, shows that the justice, the plaintiff and defendant resided in the same county and that the summons issued to that county. The defendant appeared and defended the action. He had administered in another county. The decision was clearly correct, and with all possible deference we [259] are unable to see bow it in the slightest degree militates against the conclusion reached by us. We do not think that an action to enforce the lien given for “material furnished”, is a proceeding quasi in rem. The debt is the personal liability founded upon contract; the action is to recover judgment for the debt. The lien attaches, is filed and enforced as directed by the statute for the security and payment of the judgment obtained on the debt. We .are therefore of the opinion that the judgment rendered in the action of Poe v. Rutherford by the justice was void and that the purchaser at the sale under the execution acquired no title. We note that the “bill of particulars”-filed shows no liability of the feme defendant, and that the plaintiffs did not prove their claim as required by Rule 8, section 1464, Revisal, which provides “that when a defendant does not appear and answer the plaintiff must still prove his case before he can recover.” It may be that the law would presume that this was done or that the failure to do it rendered the judgment erroneous or irregular, but not void. In view of the fact that upon docketing a transcript of the judgment in the Superior Court a lien upon land is acquired and title passed under execution sale, it would seem that for the protection of -purchasers jurisdictional facts should be made to appear upon the transcript. It is uniformly held that if such facts appear on the record of judgments rendered by courts of general jurisdiction the purchaser is not required to look further, but is protected. Here the jurisdictional facts do not appear upon the justice’s record. On the contrary, it does appear that the justice had no jurisdiction. Upon an inspection of the entire record we concur with his Honor’s ruling. There is No Error.