Flowers v. . KingFlowers v. . King
- Reporters:
- , ,
- Before:
- Hoke
after stating the case: It appeаrs from the facts found by the Judge on the hearing that defendant has been ejected from a piece of land by virtue of final process of the court, issued on a judgment by default in the present cause, thе original process having been served on a different man of the same namе as the defendant. In regard to servicе on defendant, the Court finds the facts to be as follows: “The Court finds that the summons in this action had never.been served upon the rеal defendant, Lewis King, a negro, and the said *235 Lewis King has never entered an appearance in said suit, either in persоn or by attorney, and bad no knowledge of the pending action until the writ of possession was served upon him.” On these facts it is well established with ns that the judgment against the defеndant is absolutely void, and may be set aside on motion ‘of defendant, or treated as a nullity when and wherever the entire lack of jurisdiction is made to appear. Card v. Finch, 142 N. C., 140; Carter v. Roundtree, 109 N. C., 29; Doyle v. Brown, 72 N. C., 393; Copper Co. v. Martin, 70 N. C., 300; Black on Judgments, sec. 307. It is urged that the judgmеnt should not be set aside, because • the affidavits have failed to disclose any facts which would enable the defendаnt to .make a valid defense against the plaintiffs demand. This-is usually required before a court will disturb an irregular judgment. As said in Beclon v. Dunn, 137 N. C., 559-562, speaking оf irregular judgments: “The authorities are all to the effect that an irregular judgment may bе set aside at a subsequent term, independent of section 274 of The Code. Wolfe v. Davis, 74 N. C., 597. This is not done as a matter of absolute right in the рarty litigant, but rests in the sound legal discretion of the Court. It is always required that a party сlaiming to be injured should show that some substantiаl right has been prejudiced, and he must prоceed with proper diligence аnd within a reasonable time.” But no such requirement exists when the judgment is void by reason of an entire lack of jurisdiction of the pаrty. In that case the judgment is a nullity, .and the party affected is entitled to have samе set aside whenever such fact is madе to appear, and without proof or suggestion of merits. Black on Judgments, sec. 348, citing Dobbin v. McNamara, 113 Ind., 54; Roberts v. Pawley, 50 S. C., 913.
The doctrine of the text is fully supported by the authorities cited, and is in accord Avith the principles established by our oavu decisions.
There is no error, and the judgment of the court beloAV is
Affirmed.