On the production of this record, the presiding judge gave judgment for the plaintiffs, and the defendant appealed.
The Constitution and laws of the country guarantee the principle that no freeman shall be divested of a right by the judgment of a court, unless he shall have been made party to the proceedings in which it shall have been obtained. When personal notice cannot be given, it must be dispensed with from necessity, and that must be done which is next most likely to answer the same purpose: public notice must be given, or the defendant's property must be laid hold of. The latter mode was directed and attempted to be adopted in the present case, and had it succeeded the plaintiff would have been authorized to proceed to judgment, because the property when levied upon represented its owner, and of course was liable to that judgment. But no property of the defendant was levied upon; his right to the corn was divested by older process, and judgment was obtained against him when he was not made party to the proceedings in any way known to the law.
I cannot, therefore, consider it a sufficient and legal foundation for the judgment rendered in this case. I am consequently of opinion that the rule for a new trial should (189) be made absolute.
PER CURIAM. Judgment reversed and new trial awarded.
Approved: Skinner v. Moore, 19 N.C. 138" court="N.C." date_filed="1836-12-05" href="https://app.midpage.ai/document/den-ex-dem-skinner-v-moore-3642059?utm_source=webapp" opinion_id="3642059">19 N.C. 138; Burke v. Elliott, 26 N.C. 355" court="N.C." date_filed="1844-06-05" href="https://app.midpage.ai/document/doe-ex-dem-burke-v-elliott-3659967?utm_source=webapp" opinion_id="3659967">26 N.C. 355;Deaver v. Keith, 27 N.C. 374" court="N.C." date_filed="1845-06-05" href="https://app.midpage.ai/document/deaver-v--keith-3678438?utm_source=webapp" opinion_id="3678438">27 N.C. 374; Stallings v. Gully, 48 N.C. 344" court="N.C." date_filed="1856-06-05" href="https://app.midpage.ai/document/stallings-v--gully-3665596?utm_source=webapp" opinion_id="3665596">48 N.C. 344;Perry v. Mendenhall, 57 N.C. 157" court="N.C." date_filed="1858-12-05" href="https://app.midpage.ai/document/perry-v--mendenhall-3676305?utm_source=webapp" opinion_id="3676305">57 N.C. 157; In re Ambrose, 61 N.C. 91" court="N.C." date_filed="1867-01-05" href="https://app.midpage.ai/document/in-re-ambrose-3664613?utm_source=webapp" opinion_id="3664613">61 N.C. 91; McKee v.Angel, 90 N.C. 60" court="N.C." date_filed="1884-02-05" href="https://app.midpage.ai/document/mckee-v--angel-3668337?utm_source=webapp" opinion_id="3668337">90 N.C. 60; Spillman v. Williams, 91 N.C. 483" court="N.C." date_filed="1884-10-05" href="https://app.midpage.ai/document/spillman-v--williams-3652970?utm_source=webapp" opinion_id="3652970">91 N.C. 483; Stancil v. Gay,92 N.C. 462; Welfare v. Welfare, 108 N.C. 275; Stafford v. Gallops,123 N.C. 22; Morris v. House, 125 N.C. 564; Seaman v. Seaman, 129 N.C. 295.