74 S.E. 642 | N.C. | 1912
This is an action by the plaintiff to recover $500 for professional services, as an attorney at law, rendered to the defendant, at his request, and for which he promised to pay the said sum. The *33 defendant is not a resident of this State. The action was commenced by issuing a summons returnable to September Term, 1909, of the Superior Court of Montgomery County, upon which the sheriff returned that the defendant could not be found in his county. Upon affidavit filed, a warrant of attachment was issued and levied by the sheriff upon property of the defendant in said county. The action was commenced too late to publish the summons before September term of the court, but upon affidavit filed after the term, publication of the summons and warrant of attachment was made for the defendant, returnable to the next term. It is objected by the defendant that there are irregularities in the proceedings which are sufficient to vitiate the attachment, and, therefore, he is not properly before the court, and the judgment rendered for the debt is void. He entered a special appearance for the purpose of moving to set aside the judgment and the attachment and dismissing the action because of said defects.
We think it sufficiently appears that the warrant of attachment was returnable to the court in term, as the date of the beginning of the term is given, and the summons is expressly made returnable to term, the corresponding date being also given. This being so, the process can be amended, if necessary, so as to cure the informality. Revisal, secs. 507 and 509. Besides, the publication gave defendant sufficient (41) notice that the warrant could be vacated by him at January Term, 1910, if it was insufficient. No real right of his has, therefore, been prejudiced. It is the policy of our Code system that amendments of process, pleadings, and proceedings should be liberally allowed, so that causes may be tried or heard upon their merits, and to prevent a failure of justice for reasons, sometimes technical, if not frivolous, which do not affect the substantial rights of the parties. Pell's Revisal, sec. 507, and cases cited in the note. "The court or judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Revisal, sec. 509. Where, in a proceeding of attachment, it appears from the whole record that the provisions of the statute have been substantially complied with, the action will not be dismissed nor the attachment dissolved. Grant v. Burgwyn,
We now come to the serious and really the only material question in this case. Defendant requested the court to set aside the judgment and allow him to defend the action. This application was made upon affidavit, which alleged that the defendant has a good and meritorious defense to the action, and the judge substantially so finds as a fact, and that the defendant had no actual notice of the pendency of the action until after the judgment was rendered therein. The judgment was given at January Term, 1910, and the motion to vacate it was made on 21 March, 1910, within the time fixed by statute. The statute requires that a nonresident, upon good cause shown, must be allowed to defend after judgment, if his application to do so is made within one year after *35
notice of the judgment, and within five years after its rendition, (43) preserving the rights acquired by innocent purchasers. Pell's Revisal, sec. 449. We cannot imagine any better cause for setting aside a judgment recovered upon constructive or substituted service than that which is assigned by the defendant in this case. He had no knowledge of the judgment and was not guilty of any laches, and he has a good defense. The right to be let in for the purpose of defending the action does not depend upon the exercise of the judge's discretion. The terms of the statute are mandatory, and the judge must set aside a judgment and permit a defense if good cause can be shown, and what is sufficient cause must be a question of law. Bacon v. Johnson,
Error. *36