Hassell v. Wilson

44 N.C. App. 434 | N.C. Ct. App. | 1980

HEDRICK, Judge.

Plaintiffs argue on appeal that the judge erred in entering the judgment of involuntary dismissal. They contend that the evidence establishes invalid service on Mr. Hassell. Defendants strenuously contend the contrary. The question, however, is not before us. Nor was it before the Superior Court judge in the posture in which it was presented.

It is an elementary principle of law that a judgment which is regular and valid on its face may be set aside only by a motion in the original cause in the court wherein the judgment was rendered. 8 Strong’s N.C. Index 3d, Judgments § 30 (1977). Accord, East Carolina Lumber Co. v. West, 247 N.C. 699, 102 S.E. 2d 248 (1958); Davis v. Brigman, 204 N.C. 680, 169 S.E. 421 (1933). The judgment may not be attacked collaterally. Robinson v. United States Casualty Co., 260 N.C. 284, 132 S.E. 2d 629 (1963); Horton v. Davis, 12 N.C. App. 592, 184 S.E. 2d 601 (1971). Neither may a direct attack thereon be maintained in an independent action. Davis v. Brigman, supra; Jordan v. McKenzie, 199 N.C. 750, 155 S.E. 868 (1930). [Cf. Downing v. White, 211 N.C. 40, 188 S.E. 815 (1936), which held that a judgment irregular on its face may be attacked by independent action.]

Plaintiffs in the case before us have brought this independent action seeking to directly attack the judgment entered by the Clerk of Superior Court wherein she ordered the foreclosure to proceed, pursuant to G.S. § 45-21.16 (1977 Supp.). They have made no allegations of fraud to entitle them to proceed by independent action. Strong’s N.C. Index, supra at § 30.1. They have neither alleged nor demonstrated that service was irregular on its face so as to allow them to proceed in this fashion, Downing v. White, supra, and evidence aliunde the record of service is incompetent for such a purpose. Williams v. Trammell, 230 N.C. 575, 55 S.E. 2d 81 (1949). To the contrary, the record and the plaintiffs’ own stipulations establish beyond question that service was prima facie valid. As was stated in Davis v. Brigman, supra at 682, 169 S.E. at 421:

This Court has repeatedly held that when it appears from the officer’s return that a summons has been served as required by law, when in fact it has not been served, the remedy is a motion in the cause to set aside the judgment and not an independent action.

See also Harrington v. Rice, 245 N.C. 640, 97 S.E. 2d 239 (1957); Jordan v. McKenzie, supra.

Jurisdiction of the original cause in this case lies with the Clerk of Superior Court of Pasquotank County. No appeal having been taken from the order of foreclosure as provided in § 45-26.16(d), plaintiffs’ remedy to set aside that order is by motion in that action. The parties’ effort to incorporate in this independent action a motion in the cause apparently filed in the original proceeding before the Clerk is feckless, since, under the statute, the Superior Court would have only appellate jurisdiction over the original foreclosure proceeding, and over the clerk’s ruling on a motion in the cause. Cf. Galer v. Auburn-Asheville Co., 204 N.C. 683, 169 S.E. 642 (1933). That portion of the judgment wherein plaintiffs’ action is dismissed under Rule 41(b) must, therefore, be vacated.

Defendants’ counterclaim is essentially an ejectment proceeding, and an action for damages for wrongful occupancy of their property. The allegations in plaintiffs’ purported claim hereinbefore discussed would be no defense to the defendants’ proceeding for ejectment. Horton v. Davis, supra. If defendants prevail upon their counterclaim, they would be entitled to a judgment “that the defendant [plaintiffs herein] be removed from, and the plaintiff [defendants herein] be put in possession of, the . . . premises”. G.S. § 42-30. They would also be entitled to recover the reasonable rental value of the premises for such time as the plaintiffs wrongfully occupy such premises.

While the trial court made findings and conclusions which would support a judgment for defendants on their counterclaim, it clearly predicated its judgment on its erroneous finding and conclusion that

by virtue of the dismissal of plaintiffs’ action set forth in the complaint filed in the above entitled action, the foreclosure proceedings and trustee’s deed dated December 1, 1977 from J. Kenyon Wilson, Jr., trustee to James A. Hudson and wife, Helen B. Hudson attacked by plaintiffs were in all respects confirmed and adjudicated lawful and proper.

However, a more serious error appears in the judgment for the defendants. The trial judge ordered that

the plaintiffs, ... be and are hereby directed to leave and vacate the subject property on or before January 15, 1979 and if said parties fail to so leave and vacate the subject property . . ., the Clerk of Superior Court of Pasquotank County is hereby directed to issue writ or order of possession after said date of the subject property in favor of James A. Hudson and wife, Helen B. Hudson . . . pursuant to N C Gen Stat Section 45-21.29(k).

In our opinion, the trial judge had no authority to order the Clerk to issue a writ of possession pursuant to G.S. § 45-21.29 since the Clerk is authorized by that statute to issue the writ only upon “application” by the mortgagee, the trustee or the purchaser of the property, and only after notice to the parties in possession. The judge in the present case, upon proper findings and conclusions, might have ordered the plaintiffs removed and the defendants put in possession, but that he did not do. Therefore, since the trial court clearly predicated its judgment for defendants upon its erroneous conclusion with respect to plaintiffs’ attempt to set aside the foreclosure proceedings, and because the order directing the Clerk to issue a writ of possession is unauthorized, the judgment for defendants on their counterclaim must be vacated.

The result is: The judgment of involuntary dismissal as to the plaintiffs’ action is vacated, and the matter is remanded to the Superior Court for the entry of an Order dismissing the complaint pursuant to Rule 12(b)(6), G.S. § 1A-1. With respect to defendants’ counterclaim, the judgment is likewise vacated, and the cause remanded for further proceedings not inconsistent with this Opinion.

Vacated and remanded.

Judges MARTIN (Robert M.) and WELLS concur.