White v. Morris, 107 N.C. 92

Davis, J.

аfter stating the facts: Was the judgment in question irregular and void ?

There is a presumption in favor of the validity of every judgment of a Court of competent jurisdiction, and, in this, there is no distinctiоn between judgments against adults and judgments against infants, where the parties are properly within the jurisdiction of the Court (Mauney v. Gidney, 88 N. C., 200), and while it is, for obvious reasons, the duty of the Courts to see that the rights and interests of infants are guarded and protected, and, where they are without regular guardians, to- see that suitable and fit persons are appointed guardians ad litem to рrotect and defend them in their rights when litigated before the Courts, yet, in the absence of any charge that the Court has been imposed upon by fraud and collusion, it will be presumed that every Court, having jurisdiction of the parties and the subject matter, does what is necessary to give effect to its proceedings; this presumption in favor of the validity of judicial proceedings will not permit the judgments of Courts to be set aside or annulled, in the absence of fraud, for mere informalities, technicalities or omissions that do not affect their merits or defeat the ends of justice. Omnia presumuntur rite esse acta. It would tend to lessen public confidence in the efficacy of judicial proceedings if the judgments of Courts, after the laрse of years, are to be disturbed for the want of formal and technical precision in the record of their proceedings and judgments. It is for this manifest reason of public policy, as well as in the interest of substantial justice, which is not always subserved by re-opening and prolonging litigation, that the Courts have gone very far in upholding the validity of loose and informal proceedings and judgments, as in the case of Howerton v. Sexton, 90 N. C., 581, and similar cases. Besides, it is enacted (The Code, §276) “that no judgment shall be reversed or affected, by reason of any error or defect in the pleadings or рroceedings which shall not affect the substantial rights of the adverse party.”

In this case the defendants insist that the judgment was irregular and void upon ‍‌‌​‌​​​‌​​‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​​​​‌​‌‌​‌​​​‌​‌​​‌‍several grounds. The first is that there was no personal service on the infants.

Formerly an infant was brought into Court j.ust as any other defendant was. If he had a general guardian, process was served upon the guardian; if there was no general guardian, the Court acquired jurisdiction by service of process upon the infant, and appointed some suitable person— frequently some officer of the Court — as guardian ad litem, who accepted service and defended for him; but since the Code of Civil Procedure (The Code, §217), the service upon a minor under the age of fourteеn must be upon him personally, and also his father, mother or guardian, or, if there be none in the State, then upon any person having the care and control of such minor, or with whоm he shall reside, or in whose service he shall be employed. In the present case, process was not served upon the defendants personally, as was required, but upon their grandfаther, with whom they .lived.

The failure of personal service is cured by the act of 1879 (The Code, § 387), which makes valid the “ proceedings, actions, decrees and judgments” in civil actions and special proceedings of the Courts, notwithstanding there has been no personal service of summons in actions pending against infants, and prior to March 14th, 1879, unless impeached and set aside for fraud. But the defendants say that the curative act of 1879 does not apply tо cases in which there has been no service of process upon any one, and that, in this case, there never "was any valid service of process upon anybоdy, because it was served, as appears by endorsement on the summons, on the 26th day of March, 1871, and that is found, as a fact, to have been Sunday, and was, therefore, void. The record shows that the summons was issued on the 19th day of April, 1871, and executed on the 26th of March, 1871. This was impossible, in the order of time, and it is manifest that there was some mistake in regard to the dates. But assuming that it was on Sunday, it is said in State v. Ricketts, 74 N. C., 192, that, “In this State every act may lawfully be done on Sunday which may lawfully be done on any other day, ‍‌‌​‌​​​‌​​‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​​​​‌​‌‌​‌​​​‌​‌​​‌‍unless there be some act of the legislature forbidding it to be done on that day.” Under the law prior to The Code, it was made illegal to execute any civil process on Sunday, and all such process might be “abated by plea” (Rеvised Code, ch. 31, §54), and now, under The Code, §291, iio person can be arrested in a civil action on Sunday. But we need not pursue this branch of the question, as there was an appearаnce, and, as is well settled, this cured any preceding irregularity, and constituted a cause in Court, and placed the defendants in the same situation in relation to it as if process had been properly and regularly served upon them. Turner v. Douglass, 72 N. C., 127. It gave the Court jurisdiction.

In Marshall v. Fisher, 1 Jones, 111, it is said that a judgment against an infant appearing by attorney, though erroneous, “is of full force and effect until it be rеversed,” and the objection, says PearsoN, Judge, could only be taken advantage of by a writ of error. As writs of error are now abolished in civil actions, and appeаls substituted therefor (see The Code, § 544, et seq.), it can now be only by appeal. See, also, Turner v. Douglass, supra.

The defendants rely upon Stancill v. Gay, 92 N. C., 464; Larkins v. Bullard, 88 N. C., 35, and Perry v. Adams, 98 N. C., 167. There is a very clear distinction between those cases and this. In them there was no service of process at all, on anybody, no guardian ad litem appointed to protect their rights, and no answer by any one for them, and thе curative act of 1879, neither by its letter nor spirit, was intended to make the proceedings and judgments valid in such cases. In Perry v. Adams, the present Chief Justice said: “The object of the curative statute ‍‌‌​‌​​​‌​​‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​​​​‌​‌‌​‌​​​‌​‌​​‌‍is to cure the judgment and proceeding, when such personal service was omitted, but it does not embrace cases where no service was made upon the infant, or any other person in his behalf, as the statute requires to be done.” In the case before us, there was service upon the grandfather of the infants, with whom they lived, and an appearance and answer for them.

The defendants say, secondly, that there was no evidence before the Court to support the finding of fact that “ W. L. Reid filed an answer as guardian ad litem for the defendants, or of his appointment as guardian ad litem.” The recitals and facts appearing in the record constitute evidence, in themselves, to support the finding, and this objection cannot be sustained.

The law is careful in protecting the rights of infants, and when they are brought within the jurisdiction of the Courts, by prоper or sufficient process, a guardian ad litem should be appointed for them who shall, “if the cause in which he is appointed be a civil action, file his answer to the complaint within the time required for other defendants,” and the requirements of The Code, §181, and, as the present Chief Justice said in Ward v. Lowndes, 96 N. C., 378: “This statute should be strictly observed, but mere irregularities in observing its provisions, not affecting the substance of its purpose, do not nеcessarily vitiate the action or special proceeding, or proceedings, in them.”

In Williamson v. Hartman, 92 N. C., 239, it is said: “Generally, a judgment will be set aside only when the irregularity has not been waivеd or cured, and has been, or may be, such as has worked, or may yet work, serious injury or prejudice to the party complaining interested in it. While, as has been said, the Courts will always be careful of the rights ‍‌‌​‌​​​‌​​‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​​​​‌​‌‌​‌​​​‌​‌​​‌‍of infants, they will not set aside irregular judgments against them as a matter of course, and before doing so, it ought to appear from the record, or оtherwise,-that the infant has suffered some substantial wrong or injury. Of course, it may be impeached for fraud, and will also be set aside if void.”

It is insisted, thirdly, that no issues were submitted to the jury, and that there was no waiver of trial by jury, as required by The Code, and the Judge had no right to find the facts in the manner set out, and that the judgment rendered was void for this fatal irregularity. The defendants were properly in Court by their guardian ad litem and by attorney, and it was competent for them to waive a jury trial, which should have been properly and regularly done in the mode prescribed by statute; but, if the Judge proceeded to find the facts, and there was no objection, neither before nor after the rendition of the judgment, during the term, and without appeal, it must be taken tо have been rendered by consent and a waiver, and they will be estopped. Leach v. Railroad, 65 N. C., 486; Crump v. Thomas, 85 N. C., 272; Stevenson v. Felton, 99 N. C., 58; Spencer v. Credle, 102 N. C., 68; Railroad v. Parker, 105 N. C., 246.

When the Court has jurisdiction of the parties and of the subject matter, and renders judgment regularly in term, it will be assumed, after judgment, that any preceding informality has been waived by consent; and, if the judgment is taken without objection, though it be erroneous, if there is no appeal, it will bе too late to say that there was no waiver.

The Court having jurisdiction of the parties, if there was no consent, the proper remedy was by appeal, as in the cases of Andrews v. Pritchett, 66 N. C., 387, and Chasteen v. Martin, 81 N. C., 51.

It appears from the recital in the judgment that the guardian ad litem adopted the answer that had been filed for the defendants. This answer, sent up as part of the case, is not a mere formal answer, but a denial, in detail, of the allegations of the complaint, and sets forth, affirmatively, matters of defence, manifesting an intelligent interest in behаlf ‍‌‌​‌​​​‌​​‌​​​‌‌‌​‌‌​​​‌‌​‌‌‌​​​​‌​‌‌​‌​​​‌​‌​​‌‍of the infant defendants. It does not appear how the defendants suffered any wrong or injury, or that any injustice was done them; and, in the absence of fraud, of which there is no allegation or intimation, the judgment must be presumed to have been fairly and regularly taken. Wiseman v. Penland, 79 N. C., 197.

No error.

Case Details

Case Name: White v. Morris

Court Name: Supreme Court of North Carolina

Date Published: Sep 15, 1890

Citation: 107 N.C. 92

Court Abbreviation: N.C.