Downing v. . White
188 S.E. 815
N.C.
1936
Check Treatment
Stacy, 0. J.

This is thе same case that was before us on a procedural question at the Spring Term, 1934, reported in 206 N. C., 567, 174 S. E., 451.

It is elementary that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by аttorney, a judgment rendered against him is void for want of jurisdiction. Dunn v. Wilson, 210 N. C., 493; Guerin v. Guerin, 208 N. C., 457, 181 S. E., 274; Harrell v. Welstead, 206 N. C., 817, 175 S. E., 238; Clark v. Homes, Inc., 189 N. C., 703, 128 S. E., 20; Pinnell v. Burroughs, 168 N. C., 315, 84 S. E., 364; Card v. Finch, 142 N. C., 140, 54 S. E., 1009; Bernhardt v. Brown, 118 N. C., 700, 24 S. E., 527, 715; Armstrong v. Harshaw, 12 N. C., 187.

True, “where it appears from the record that a person was a party tо an action, when in fact he was not, the legal presumption that ‍‌​​​‌​‌​‌‌‌​​‌​‌‌​‌​​‌‌​‌​​‌​‌​​‌​‌‌​‌​‌‌‌​​‌​​​‍he was properly a party is conclusive until removed by a corrеction of the record itself, by a direct proceeding for that рurpose.” Smathers v. Sprouse, 144 N. C., 637, 57 S. E., 392; Doyle v. Brown, 72 N. C., 393. In other words, where it affirmatively appears from the rеcord in a case that one was duly served or made a party thereto, the remedy for establishing the *42 fact of nonserviee or “false return,” if such, be the fact, is by motion in the cause and not by an independent action. Davis v. Brigman, 204 N. C., 680, 169 S. E., 421; Long v. Rockingham, 187 N. C., 199, 121 S. E., 461; King v. R. R., 184 N. C., 442, 115 S. E., 172; Eure v. Paxton, 80 N. C., 17. Here, however, it does not apрear that Harriet Dix was ever a party, or ‍‌​​​‌​‌​‌‌‌​​‌​‌‌​‌​​‌‌​‌​​‌​‌​​‌​‌‌​‌​‌‌‌​​‌​​​‍attempted to be made a party, to the action of “Bridger Corporation v. Dix.” The pаpers have been lost, with the exception of the judgment, and the оnly title to the judgment is “Bridger Coloration v. Dix.” So, under the circumstances, it not appearing that Harriet Dix was ever a party to said procеeding, we apprehend her right presently to attack the judgment rendered therein as a cloud on her title ought not to be denied. Stocks v. Stocks, 179 N. C., 285, 102 S. E., 306; Truelove v. Parker, 191 N. C., 430, 132 S. E., 295. ETothing was said in Clark v. Homes, Inc., supra; Pinnell v. ‍‌​​​‌​‌​‌‌‌​​‌​‌‌​‌​​‌‌​‌​​‌​‌​​‌​‌‌​‌​‌‌‌​​‌​​​‍Burroughs, supra; Bailey v. Hopkins, 152 N. C., 748, 67 S. E., 569; Hargrove v. Wilson, 148 N. C., 439, 62 S. E., 520; Rackley v. Roberts, 147 N. C., 201, 60 S. E., 975; Brickhouse v. Sutton, 99 N. C., 103, 5 S. E., 380; or Sumner v. Sessoms, 94 N. C., 371, which militates against this position.

The laboring oar, of course, is with the plaintiff, as a prima facie presumption of jurisdiction аrises from the exercise of it, and throws the burden of disproving its existencе upon the party denying it. Starnes v. Thompson, 173 N. C., 466, 92 S. E., 259.

Should the papers be found, and the fact of nonservice appear on the face of the recоrd, plaintiff’s right to attack the judgment would ipso facto be established. Graves v. Reidsville, 182 N. C., 330, 109 S. E., 29. Non conslat that this right should be deiiied simply ‍‌​​​‌​‌​‌‌‌​​‌​‌‌​‌​​‌‌​‌​​‌​‌​​‌​‌‌​‌​‌‌‌​​‌​​​‍because the papers have been lost. Pinnell v. Burroughs, supra; Massie v. Hainey, 165 N. C., 174, 81 S. E., 135; Card v. Finch, supra.

In Bernhardt v. Brown, supra, there is an observation to the effect that “in the absence of the transcript of the proсeedings therein, the presumption of law is that it is regular in all respects, including service,” but this was said in reference to one who appеared to be a party to such proceeding, and not to one who did not so appear, nor did it have reference to lost records.

It is well established here and elsewhere that “a judgment renderеd by a court against a citizen affecting his vested rights, in an action or proceeding to which he is not a party, is absolutely void, and may be trеated as a nullity whenever it is brought to the attention of the court.” Johnson v. Whilden, 171 N. C., 153, 88 S. E., 223.

Again, in Doyle v. Brown, supra, it was hеld that “when a defendant has never been served with process, nor appeared in person or by attorney, a judgment against him ‍‌​​​‌​‌​‌‌‌​​‌​‌‌​‌​​‌‌​‌​​‌​‌​​‌​‌‌​‌​‌‌‌​​‌​​​‍is not simply vоidable, but void, and may be so treated whenever and wherever offered, without any direct proceeding to vacate it.”

*43 Similarly, in Condry v. Cheshire, 88 N. C., 375, it was Reid (as stаted in third headnote) : “A judgment against a party upon whom no service оf process has been made nor appearance еntered, is absolutely void, and may be so treated without any direct proceeding to vacate it.”

In this view of the matter, considering the present state of the record, it would seem the plaintiff is entitled to questiоn the judgment in the Bridget Corporation case, to show its invalidity, if she can, and if found to be void, to have it removed as a cloud on her title. Johnson v. Whilden, supra; Oliver v. Hood, Comr., 209 N. C., 291, 183 S. E., 657. Of course, if, upon the discovery of the lost papers in said suit, it should appear that the plaintiff was duly or ostensibly made a party thereto, a different principle would prevail. Davis v. Brigman, supra; Dunn v. Wilson, supra.

Rew trial.