Bernhardt v. . BrownBernhardt v. . Brown
- Reporters:
- ,
- Before:
- Clark
It was admitted that both parties claimed under the North Carolina Estate Company (Limited), and that the land in controversy had been conveyed to the company by deed, in June, 1886.
In response to issues submitted, to which there were no (703) exceptions, the jury found that there had been two execution sales of the land in controversy; that at the first sale, made 6 May, 1889, when the defendant George W. Brown purchased, the sheriff sold under four executions; that at the second sale, made 8 July, 1890, when the plaintiffs (or John Paalzow, under whom they claimed) purchased, the sheriff sold under only one execution, and that an execution issued on a judgment in favor of John Paalzow. The executions under which the first sale was made issued on judgments in favor of A. H. Wilson, the Shuford Hardware Company, Dunovant McConnaughey and Brown McDowell, all against the North Carolina Estate Company, Limited.
The A. H. Wilson judgment was rendered in the Superior Court of Burke County on 4 March, 1889, in an action brought by him for the enforcement of two mechanics’ liens, filed 16 July, 1888, against certain town lots in Glen Alpine, for work and labor done thereon. This judgment was for $359.60 and costs, and the same was declared a lien on said lots from 16 July, 1888, the date of filing said liens. The execution which issued on this judgment, 30 March, 1889, declared the same a lien from 16 July, 1888, on said lots, and ordered the sheriff to sell said lots to pay the same. The other three judgments were justices’ judgments in attachments, and were declared to be liens upon the land in controversy and upon the Glen Alpine lots. The judgment in favor of Dunovant McConnaughey and the Shuford Hardware Company were both rendered the same day and transcripts issued and docketed the same day. In each of these cases a warrant of attachment was issued the same day and levied by the sheriff the same day, 24 January, 1889, upon the land in controversy and upon (704) the Glen Alpine lots. Judgments were rendered in these two actions on 22 February, 1889, and transcripts docketed in the Superior Court of Burke County, 25 February, 1889. The judgment in each of these actions was declared a lien upon the land in controversy and upon the Glen Alpine lots. Executions issued on these two judgments from the Superior Court of Burke County, on the Shuford judgment, 1 April, 1889, and on the Dunovant McConnaughey judgment, 1 May, 1889. The judgment in favor of Brown McDowell was rendered 6 April, 1889. The warrant of attachment had been issued, and the same was levied upon the land in controversy, on 8 March, 1889, and the judgment was declared an attachment lien on the said land and lots, and a transcript of said judgment was docketed in the Superior Court 1 May, 1889, and execution issued 1 May, 1889. Under executions issued on these four judgments the land in controversy was sold 6 May, 1889, and defendants purchased. There was no personal service of summons upon the North Carolina Estate Company, Limited, in any of these cases, but in all of them there was constructive service by publication. In three of them an attachment was levied upon the land in controversy and publication made thereof; in the other, a statutory lien upon the Glen Alpine lots and publication. At the sale, 6 May, 1889, when the defendants purchased under these four executions, the Glen Alpine lots were first sold, and realized $200, which was not sufficient to discharge the A. H. Wilson execution, which was the first lien thereon. At the second sale, made 8 July, 1890, when the plaintiffs purchased, the sheriff sold only under
From the judgment rendered on the verdict for the defendants (705) the plaintiffs appealed. “Due process of law” requires that service of process shall always be made. There are three modes in which this can be done:
1. By actual service (or, in lieu thereof, acceptance of service or a waiver of service by an appearance in the action). Whether actual service shall be made by reading the summons or notice to the defendant, or leaving a copy with him personally or at his usual place of residence, is for the Legislature to prescribe. The Code, secs. 214, 217, 597.
2. By publication of summons in cases in which it is authorized by law, in proceedings in rem. In these cases the Court already has jurisdiction of the res, as to enforce some lien or a partition of property in its control, or the like, and the judgment has no personal force, not even for the costs, being limited to acting upon the property.
3. By publication of the summons, in cases authorized by law, in proceedings quasi in rem. In those cases the court acquires jurisdiction by attaching property of a nonresident or of an absconding debtor, and in similar cases, and the judgment has no personal efficiency, extending no farther than its enforcement out of the property seized by attachment.
Proceedings in divorce are sui generis, as the judgment therein merely declares a personal status, and publication of the summons is allowed without the acquisition of jurisdiction by attachment of property, the court having jurisdiction of the person of the plaintiff. The Wilson judgment to enforce a mechanic‘s lien was a (706) a proceeding in rem, and service by publication was authorized by The Code, sec. 218 (4). In Pennoyer v. Heff, 95 U.S. 714, it is said: “Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or lien respecting the same, or
The plaintiff could not collaterally attack the three justice‘s judgments, under which the sale of 6 May, 1889, was alleged to have been made, for irregularity, but he has the right to insist that they are void if there was no service of process in such cases in any mode (707) prescribed by law, having acquired his own rights by purchase under a junior judgment. The defendant in such justice‘s judgments was not served personally, and, being a resident of this State, i. e., a domestic corporation, could not, till the act of 1889, be served by publication, except in the instances mentioned in The Code, secs. 218 (2), 218 (4). Laws 1889, ch. 108, extended these instances by providing that where the defendant is a corporation created by or organized under the laws of this State, and no officer or agent thereof, upon whom service of process can be made, can after due diligence be found in the State, and that fact is duly made to appear by affidavit to the satisfaction of the clerk of the Superior Court of the county in which such process was issued, such clerk shall grant an order that service of such process may be made by publication in the manner therein provided. This act was ratified 13 February, 1889. Until the passage of this act there was no means provided for service of process against a domestic corporation whose officers and agents could not be found. It was simply a casus omissus. Service could be had upon nonresident defendants and corporations by publication of summons when personal service could not be had, provided jurisdiction was procured by attachment of property [The Code, secs. 218 (1), 218 (3); Long v. Ins.Co., supra], and against residents and
While it is a good and convenient practice to set out the grounds of exception to the judge‘s charge on the motion for a new trial before him, to the end that on fuller reflection he may have the opportunity to correct the errors, if any, committed by him, and save the parties the delay and expense of an appeal, this is not absolutely required, and it is sufficient if the exceptions to the charge are set out in the appellant‘s statement of the case on appeal. McKinnon v. Morrison, 104 N.C. 364; Lowe v. Elliott, 107 N.C. 718; Blackburn v. Ins. Co., 116 N.C. 821; Supplement to Clark‘s Code, p. 64.
It is not necessary to notice the exceptions made, other than those involved in the above discussion; but as the point was earnestly debated before us, we may note that the sixth instruction given by the court was erroneous; for, although the Paalzow judgment was a junior judgment — conceding for the argument that the three justice‘s judgments were valid — the holder of the senior judgments had no power to forbid a sale under the junior execution, and the purchaser at a sale under an execution issued upon a junior judgment gets the (710) title of the defendant in the execution, subject only to the encumbrance of the senior judgments. Worseley v. Bryan, 86 N.C. 343; Halyburton v. Greenlee, 72 N.C. 316; Isler v. Colgrove, 75 N.C. 334. If the executions on the senior judgments are in the sheriff‘s hands at the time of the sale, the purchaser gets full title, and the lien of the senior judgments is transferred to the proceeds of the sale. Cannon v. Parker, 81 N.C. 320; Gambrill v. Wilcox, 111 N.C. 42.
New Trial.
After the opinion in this case was handed down, the plaintiff (appellant) moved to modify the judgment at this term.
Addendum
In this case the Court, having found error in the instructions to the jury and to the rulings upon the admission of evidence, as pointed out by the exceptions, directed a new trial. This is a motion to correct the judgment and have the Court to enter a judgment here and reversing the judgment below. It is true that if this Court reverses or affirms the judgment below, it may in its discretion enter a final judgment here or direct it to be so entered below. By preference, and as a matter of convenience, the latter course is, unless in very exceptional cases, the course pursued, especially since Laws 1887, ch. 192, which provides that an appeal does not vacate, but
It is true that when by inadvertence the opinion of the Court granting a new trial is closed with the entry “reversed,” or viceversa, or in the case of any other inadvertence of like character, the Court, on motion, even at a subsequent term, will (711) correct the judgment to correspond with the opinion. Scottv. Queen, 95 N.C. 340; Cook v. Moore, 100 N.C. 294; Summerlin v.Cowles, 107 N.C. 459. But there could be no inadvertence in ordering a new trial in this case, since error was found in the rulings upon which the verdict was rendered. When the facts are settled by consent, or by case submitted on agreement, or the facts are found by the court, or even by a verdict, when the only error suggested is that, upon the facts found, taking them as conclusive and unexcepted to, a different judgment should have been entered by the court below, then this Court, if of that opinion, will adjudge that such judgment be reversed. But it is only in cases in which the facts are fixed, and the only controversy is that the judgment rendered upon such state of facts is erroneous, that this Court can adjudge “reversed.” In the present case the errors affected the proceedings and went into and brought about an erroneous verdict. The mover, however, insists that the error is so vital that this Court can see that on its correction the verdict on the next trial must be for the opposite party. It may be so. It may also be true that on the next trial there may be amendments to the pleadings or new evidence brought forward. The Court cannot consider argument as to the possibility or probability of such changes. If the error declared by the Court is vital and irremediable, then on the new trial below the appellee will simply, in deference to our ruling, submit to a final judgment. This Court cannot enter or direct “judgment reversed” upon the assumption that the appellee will be compelled to take that course. When, on an appeal, error is found as to the proceedings anterior to and including the verdict, we can only declare error and order a new trial. When the error is solely in the judgment rendered upon an admitted or (712) ascertained state of facts, then and in such cases only can we order the judgment below to be reversed.
Motion Denied.
Cited: Holden v. Warren, ante, 328; Bernhardt v. Brown, 119 N.C. 506; Graham v. O‘Bryan, 120 N.C. 464; Caldwell v. Wilson, 121 N.C. 473; Balkv. Harris, 122 N.C. 66; Parker v. Harden, ib.,