72 N.C. 393 | N.C. | 1875
Where a defendant has never been served with process, nor appeared in person, or by attorney, a judgment against him is not simply voidable, but void; and it may be so treated whenever and wherever offered, without any direct proceedings to vacate it. And the reason is, that the want of service of process and the want of appearance, is shown by the record itself, whenever it is offered. It would be otherwise if the record showed service of process or appearance, when in fact there had been none. In such case the judgment would be apparently regular, and would be conclusive until by a direct proceeding for the purpose, it would be vacated.
A plaintiff needs not to be brought into Court; he comes in. A judgment is of no force against a person as plaintiff, unless the record shows him to be plaintiff. If the record shows him to be plaintiff, when in fact he was not, then it stands as where the record shows one to be defendant, when he was not. In both cases the record is conclusive until corrected by a direct proceeding for that purpose. *396
Here the record, sought to be impeached, shows that the plaintiff in this case was plaintiff in that; although in fact she was not. The record must therefore stand against her until it is vacated. And so the defendants insist that this action cannot be maintained; because, they say, the plaintiff is estopped by the record.
But the defendant's error is in misunderstanding the scope of this action. It is an action in the nature of a bill in equity, to vacate the said decree, but not alone for that. It sets forth the proceedings and the decree in the former action, and that the plaintiff was not, in fact, a party thereto, and had no knowledge of it, being, at the time, as she is now, a non-resident. And it demands to have the proceedings and decree vacated and declared void. And the facts are found to be as alleged, and the proceedings and decree are in effect vacated and declared void as to the plaintiff. It is true that the action goes farther and demands that the plaintiff be declared a tenant in common with the defendants in the premises, and that they be sold, c. All this was proper, and yet it is not the less a direct proceeding to impeach the former decree.
There is no error. This will be certified to the end that such further proceedings may be had as the law directs, and the rights of the parties require.
PER CURIAM. Judgment affirmed. *397