Bacon v. . JohnsonBacon v. . Johnson
- Reporters:
- ,
- Before:
- Merrimon
after stating the case: The service of the summons or notice as original process in the action by publication, must he made strictly in accordance with the requirements of the statute (The Code, §§ 218, 219). This method of serviсe of process and giving the Court jurisdiction is peculiar, and out of the usual course of procedure. The statute prescribes, with particularity and caution, the cases and causes that must exist and appear by affidavit io the Court in *117 order that it may be allowed. The Court must see that every prerequisite prescribed exists’in any particular case before it grants the order of publication. . Otherwise the publication will be unauthorized, irregular and fatally defective, unless in some way such irregularity shall be waived or cured. Spiers v. Halstead, 71 N. C., 209; Windley v. Brad way, 77 N. C., 833; Wheeler v. Cobb, 75 N. C., 21; Faulk v. Smith, 84 N. C., 501.
The statute cited above, among other things pertinent here, prescribes and requires thаt in order to obtain an order that service of notice of the action be made by publication, it must appear by affidavit “that a cause‘of action (exists) against the defendant in respect tо whom service is to be made, or that he is a necessary party to an action relating to reаl property in this State” in a case wherein that party “is a nonresident of this State but has property therein and the Court has jurisdiction of the subject of the action,” or that “the subject of the action is real or personal property in this State and the defendant has or claims a lien or interest actual of contingent therein, or the relief demanded consists wholly or partly in excluding the defendant from any liеn or interest therein.” Such prerequisites must appear, in their substance at least. It is not sufficient to state generally that a cause of action exists against the defendants, or that they are necessаry parties to the action. A brief summary of the facts constituting the cause‘of action, or of the fаcts showing that the parties are necessary parties to the action, should be stated so that thе Court can see and determine that there exists a cause of action, or that the parties аre necessary for some appropriate purpose. ■ The party demanding the order shаll not be the judge to determine that a cause of action exists, or that the parties sought to be made parties are necessary parties. It is the province and duty of the Court to see the facts and determine the legal question as to whether there is a cause of actic n or not. Nor is it sufficiеnt to state that the party is a *118 necessary party to an action to compel specifiс performance of a contract to convey land in a particular localitjn The facts must be stated with sufficient fullness to develop the contract and the relation of the parties to it. Otherwise the party demanding the order will determine that he has a cause of action, while the statute requires the Court to do so upon facts appearing by affidavit. Claflin v. Harrison, 108 N. C., 157, and the cases cited supra.
The affidavit upon which the order of publication was made in this case failed to state the facts on which the plaintiff relied to constitutе his cause of action, and other facts to show that the appellants were necessary parties. The Court failed to see and determine upon evidence appearing as required that there was a cause of action, and that the defendants were necessary parties to the action for some proper purpose. Nor did it appear that the defendants had prоperty in this State. This is material when the purpose is to allege a cause of action against thе defendant. The order of publication was, therefore, improvidently granted. Publication was not made according to law, and the Court should have set the judgment complained of aside. It does not aрpear that the irregularity was cured or waived in any wajn
We may add also that the Court should have found the facts upon which it founded its conclusion “that no just or reasonable cause has been shown why the said judgment should be set aside as irregular and void, or that the defendants be allowed to come in and defеnd said action,” etc. It may be that the Court erroneously decided that there was no legal cause, and exercised its discretion upon that ground in refusing to allow the appellants to make defence. Whether there was such cause or not is a question of law, and the decision of the Court in that respect is reviewable in this Court. The Court recites in its judgment that it finds from “ the record and the said affidavit that no just or rеasonable cause has been shown,” etc. It should have found the facts *119 and set them forth in the recоrd, so that its decision of the question of law arising upon the facts might be reviewed. In the absence of dеmand that the facts be found, it might not be error to fail to set the findings of fact forth in the record. But the contentions of the defendants in this case imply a demand that the facts be found. The Court drew its conclusions from facts not set forth. Utley v. Peters, 72 N. C., 525.
There is error. The judgment must be reversed, and further proceedings had in the action according to law.
Error.