City of Monroe v. Niven

BaRNHill, J.

A void judgment is one which has a mere semblance but is lacking in some of the essential elements which would authorize the court to proceed to judgment. McIntosh P. & P., sec. 651, p. 734;

Harrell v. Welstead, 206 N. C., 817 , 175 S. E., 283 .

Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him.

Stancill v. Gay, 92 N. C., 462 ;

Guerin v. Guerin, 208 N. C., 457 , 181 S. E., 274 . When a court has no authority to act its acts are void. It is the service of process in some manner authorized .by law that causes the jurisdiction of the court to attach to and give the court control of the party thus brought into court.

When a court of general jurisdiction undertakes to grant a judgment in an action where it has not acquired jurisdiction of the parties by voluntary appearance or the service of process the judgment is absolutely void and has no effect. It may, therefore, be disregarded and treated as a nullity everywhere. It is coram, non judice. Copper Co. v. Marlin, 70 N. C., 300 ;

Card v. Finch, 142 N. C., 140 ;

Stancill v. Gay, supra; Guerin v. Guerin, supra; Dunn v. Wilson, 210 N. C., 493 , 187 S. E., 802 ;

Clark v. Homes, 189 N. C., 703 , 128 S. E., 20 ;

Harrell v. Welstead, supra; Johnson v. Whilden, 171 N. C., 153 , 88 S. E., 225 ;

Flowers v. King, 145 N. C., 234 ;

Downing v. White, 211 N. C., 40 , 188 S. E., 815 , and cases cited. This is so because it is against natural justice as well as fundamental right to take judgment against a man without giving him an opportunity to defend himself and his right of property.

Where the record shows service or appearance when in fact there had been none the judgment is apparently regular though void in fact and the party affected must take appropriate action to correct the record.

Doyle v. Brown, 72 N. C., 393 . This is by motion in the cause.

Harrell *365 v. Welstead, supra; Davis v. Brigman, 204 N. C., 680 , 169 S. E., 421 ;

Downing v. White, supra, and cases cited;

Adams v. Cleve, 218 N. C., 302 , 10 S. E. (2d), 911 ;

Guerin v. Guerin, supra; Fowler v. Fowler, 190 N. C., 536 , 130 S. E., 315 .

A general appearance to move to vacate a void judgment does not validate a judgment rendered without service of process. “A nullity is a nullity, and out of nothing nothing comes.

Ex nihilo nihil fit is one maxim that admits of no exception.”

Harrell v. Welstead, supra; Chemical Co. v. Turner, 190 N. C., 471 , 130 S. E., 154 ;

Motor Co. v. Reaves, 184 N. C., 260 , 114 S. E., 175 ;

Michigan Central Railroad Co. v. Mix, 278 U. S., 492 ; 73 L. Ed., 470 ; 15 R. C. L., 700.

No proof or suggestion of merit is required.

Flowers v. King, supra.

Even so, the want of service is the meritorious defense.

Adams v. Cleve, supra;

15 R. C. L., p. 700, sec. 152; p. 692, sec. 144.

Nor are movants barred by the lapse of time. “The passage of time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.” 31 Am. Jur., 66 ; Anno. 81 A. S. R., 559.

Hence, it follows that upon the facts found, to which appellees do not except, the court below erred in denying the motion of defendants. The judgment must be vacated of record.

The parties undertake to debate here the rights of the assignees of the purchasers at the foreclosure sale. It is asserted that the present owners are purchasers for value without notice and that as to them the judgment, being regular on its face, should stand.

These questions are not before us for discussion or decision. The motion is directed solely to the alleged invalidity of the judgment of foreclosure as against movants. This is all we decide. To what extent those who acquired paper title under the foreclosure judgment and the commissioner’s deed are protected by the apparent regularity of the judgment is a question which must be reserved for another clay and another action.

The judgment below is Reversed.