62 S.E. 435 | N.C. | 1908
Motion denied. Plaintiff appealed. Motion to set aside a judgment. The court found as facts: "The summons issued 27 April, 1907. It was read and a copy delivered to S.D. Mesic, at defendant's mill, 4 May, 1907. At that time L. M. Baltes was superintendent and manager of said mill, and Mesic was employed as foreman of the mill, employing and discharging hands *256 under the instruction of the superintendent; he was not an officer of the company (unless the above facts make him such) and had no authority to pay out and receive money on behalf of the defendant. After the officer left, Mesic handed the summons to Baltes, the superintendent, who was advised by counsel that there had been no legal service, and no attention was paid to the action. At October Term, 1907, judgment by default and inquiry was taken. At November Term the inquiry (345) was executed and judgment final was entered on the verdict. At February Term, 1908, motion was made to set aside the judgment, on the ground that there had been no legal service of the summons upon the defendant company."
The plaintiff moved to dismiss the motion, on the ground that the remedy was by civil action. The motion to dismiss was properly denied. When it is sought to set aside a judgment for fraud, that must be done by an independent action, because it depends upon extraneous facts, which the parties are entitled to have found by a jury. The judgment is not void for fraud, but voidable. On the face of the record it is regular. But when it is sought to set aside a judgment for irregularity, in that there has been no service of summons, it is for the court to find the facts and correct the record to speak the truth, and if in fact there was no service of summons or appearance by the defendant (which would waive service of summons), the judgment is void. Smathers v. Spouse,
"Where it appears from the record that a person was a party to an action, when in fact he was not, the legal presumption that he was a party is conclusive until removed by a correction of the record itself, by a direct proceeding for that purpose." Sumner v. Sessoms,
His Honor also correctly held that the "foreman, acting under the directions of the superintendent," is neither "an officer" nor "a managing or local agent" of the company, and hence is not a person upon whom service of summons upon the company could be made. If this were not so, service could be made on the boss spinner or boss weaver of a cotton factory, or a foreman of the round house, or any other foreman of a railroad, acting under orders of a superintendent who is present.
Affirmed.
Cited: Hargrave v. Wilson, post, 44; Whitehurst v. Kerr, 153, N.C. 80.