Bernhardt v. . Brown

26 S.E. 162 | N.C. | 1896

AVERY, J., dissenting. This is a restricted rehearing, and the sole question presented is whether the N.C. Estate Company was a domestic or foreign corporation at the time the attachment was issued in the Brem McDowell case, for if it was a domestic corporation no jurisdiction was acquired by virtue of the attachment issued against it as a foreign corporation. This is decided in this case (118 N.C. 700), in that part of the opinion as to which the rehearing was not granted, section 8 of the headnote. The affidavit for the said attachment sets out that the defendant is a foreign corporation, chartered in London, England, but "that in 1887 the defendant company obtained a charter from (507) the Legislature of North Carolina," the affidavit further reciting some portions of the charter, which in fact is an usually full and complete act of incorporation. Acts 1887, pp. 892-895. The warrant of attachment was issued upon that affidavit, which on its face shows want of jurisdiction. The judgment does not contain any finding that the corporation was a nonresident. There being an incorporation of the company here, as alleged in the affidavit, and not a mere license to do business in this State, it became a domestic corporation, and hence not liable to attachment as nonresident (the ground relied on to confer jurisdiction), though of course it would have been for any of those causes for which a domestic corporation would be liable to attachment proceedings. Code, section 349 (2); 6 Thomp. Corp., section 7799;Sprague v. R. R., 5 R. I., 233; 1 Thomp. Corp., sections 47, 320, 688, 689; 6 Thomp. Corp., sections 7452, 7472, 7817, 8012, 8020, 8128, and cases cited in those sections; Murfree Foreign Corp., sections 453, 459, 460; Young v. South Tredegar Co., 4 Am. St., 752; Drake Attachments, section 479.

The foreign corporation having been reincorporated here, the case is simply such as would be the condition if a nonresident person had moved into this State and become a resident here, and thereafter a creditor, upon an affidavit alleging those facts, had sued out an attachment against him as a nonresident and sold his land under such proceeding, in which the judgment would be void, since the Court did not acquire jurisdiction of the subject-matter, Springer v. Shavender,118 N.C. 33, nor of the person. The defendant in the supposed case not having been brought into Court by "due process of law," when the purchaser under a judgment thus obtained brings an action of ejectment the defendant, whether the original defendant in the action or (as here) one who has acquired such defendant's title by sale under a valid judgment and execution, can treat the judgment in such (508) attachment proceedings as void, just as he could a deed in the chain of plaintiff's title which is not properly executed or properly probated. It is not the case of an error or irregularity in a judgment, which can only be taken advantage of by an appeal or direct proceeding, but of a judgment void for want of jurisdiction, which is void everywhere.

PETITION DISMISSED.

AVERY, J., dissents.