Drummond v. Cordell

72 N.C. App. 262 | N.C. Ct. App. | 1985

EAGLES, Judge.

I

Defendant first assigns as error the trial court’s directed verdict in favor of plaintiff nullifying the small claims judgment in 81CVM2548. We agree that there was error.

Where a court of competent jurisdiction of the subject matter recites in its judgment or decree that service of process by summons or in the nature of summons has been had upon the defendant who is subject to the jurisdiction of the court, and the judgment is regular on its face, nothing else appearing, such judgment or decree is conclusive until set aside by direct proceedings. [Citations omitted.]

Powell v. Turpin, 224 N.C. 67, 29 S.E. 2d 26 (1944). Here, the magistrate’s judgment recited: “Due and timely notice of the nature of the action and the time and place of trial were given the defendant(s) as is shown in the record.” This statement is conclusive and not subject to collateral attack if it is consistent with the record in the case. Id. at 69, 29 S.E. 2d at 28.

The evidence at trial tends to show that the return of service on the magistrate’s summons no longer exists, having been destroyed pursuant to an order of the Administrative Office of the Courts. Other documents that may have been in the record at the time the magistrate’s judgment was entered have been destroyed as well. The recital in the judgment must prevail unless there is some evidence in the record showing affirmatively that there was no legal service of process. Id. at 70, 29 S.E. 2d at 28. Since the record, or the lack thereof, does not affirmatively show lack of legal service, the judgment does withstand collateral attack. Extrinsic evidence not contained in the record of the small claims action that tends to show lack of service or defective service is not sufficient to rebut the conclusiveness of the face of the judgment under our well-settled law on the collateral attack issue.

A contrary doctrine would be fatal to judicial sales and the values of title derived under them, as no one would buy at or approximating the true value of property if he supposed that his title might at some distant date be declared void because of some irregularity in the proceeding altogether unsuspected by him and of which he had no opportunity to inform himself.

224 N.C. at 70, 29 S.E. 2d at 28. For these reasons, collateral attack upon the magistrate’s judgment and the directed verdict in plaintiffs favor on that issue were error.

The magistrate’s judgment remains valid and is subject only to a direct attack. It remains a final judgment rendered on the merits by a court of competent jurisdiction and is conclusive as to those issues raised therein with respect to parties and those in privity with them. The magistrate’s judgment constitutes a bar to all subsequent actions involving the same issues and parties. Kabatnick v. Westminster Co., 63 N.C. App. 708, 306 S.E. 2d 513 (1983). Since the magistrate’s judgment empowered defendant Earl Cordell to sell plaintiffs automobile pursuant to G.S. 44A-4(e), the jury verdict for conversion and damages cannot stand.

We note that the trial court’s judgment in directing a verdict on the attorney fee claim states “[t]hat the defendant failed to substantially comply with the requirements of N.C.G.S. 44A [Statutory Lien on Motor Vehicles].”

G.S. 44A-4(g) states:

If the lienor fails to comply substantially with any of the provisions of this section, the lienor shall be liable to the person having legal title to the property or any other party injured by such noncompliance in the sum of one hundred dollars ($100.00), together with a reasonable attorney’s fee as awarded by the Court. Damages provided by this section shall be in addition to actual damages to which any party is otherwise entitled.

Our examination of the record indicates that plaintiff in her complaint did not elect to proceed under G.S. 44A-1, et seq. as a basis for recovery in this action for conversion. However, an admission by defendant, Earl Cordell, tended to show that G.S. 44A-4(e) and (f) were not substantially complied with in that there was improper notice of the judicial sale. Where no objection is made to evidence on the ground that it is outside the issues raised by the pleadings, the issue raised by the evidence is nevertheless before the trial court for determination. The pleadings are regarded as amended to conform to the proof even though the defaulting pleader made no formal motion to amend. Failure to make the amendment will not jeopardize a verdict or judgment based on competent evidence. If an amendment to conform the pleadings to the proof should have been made to support the judgment, the appellate court will presume it to have been made. Mangum v. Surles, 281 N.C. 91, 187 S.E. 2d 697 (1972). Therefore, the issue of whether the penalty and attorney fees provisions of G.S. 44A-4(g) are applicable in this case was properly before the trial court. See, Caesar v. Kiser, 387 F. Supp. 645 (1975). This was also properly an issue for directed verdict where the non-movant, Earl Cordell, established plaintiffs case on non-compliance with G.S. 44A-4(e) and (f) by admissions in a document before the trial court. North Carolina Nat. Bank v. Burnette, 297 N.C. 524, 256 S.E. 2d 388 (1979). As a result, that portion of the judgment on directed verdict finding that “[defendant failed to substantially comply with the requirements of N.C.G.S. 44A [Statutory Lien on Motor Vehicles]” remains valid. We note that defendants do not assign as error the trial court’s finding on this issue.

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For the reasons herein stated, the verdict of the jury must be set aside and the j'udgments of the trial court reversed except so much of the judgment on directed verdict that finds that “[defendant failed to substantially comply with the requirements of N.C.G.S. 44A [Statutory Lien on Motor Vehicles]” which is affirmed.

This case is remanded to Superior Court, Haywood County, for award of the $100.00 penalty and attorney’s fees pursuant to G.S. 44A-4(g).

Our determination of preceding issues makes it unnecessary to consider the remaining assignments of error.

Affirmed in part, reversed in part, and remanded.

Chief Judge VAUGHN and Judge BRASWELL concur.

Former Chief Judge VAUGHN concurred in the result reached in this case prior to 31 December 1984.

Judge Braswell concurred in the result reached in this case prior to 31 December 1984.