Columbus County v. Thompson

107 S.E.2d 302 (1959)

249 N.C. 607

COLUMBUS COUNTY v. D. W. THOMPSON and wife, Lula Thompson.

No. 596.

Supreme Court of North Carolina.

February 25, 1959.

John K. Burns, Whiteville, for appellants D. W. Thompson and Herbert Ransom.

Sankey W. Robinson and James Dick Proctor, Whiteville, for appellees Flossie H. Robinson and Mary Wade Robinson.

PARKER, Justice.

Judge Seawell had jurisdiction to hear the motion, for the reason that the jurisdiction of the Superior Court Judge on a motion to set aside a judgment by default entered by the Clerk is original as well as appellate. Rich v. Norfolk Southern Ry. Co., 244 N.C. 175, 92 S.E.2d 768; Moody v. Howell, 229 N.C. 198, 49 S.E.2d 233; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329.

In this action to foreclose tax sale certificates held by Columbus County, the complaint avers that the land therein described was listed for the year 1927 in the names of D. W. Thompson and wife, ___ Thompson. Chapter 334, Public Laws of North Carolina, Session 1929, which was the statute in force at the time, provided that D. W. Thompson and his wife shall be *305 made defendants, and shall be served with process as in civil actions.

Chapter 66, Public Laws of North Carolina, Session 1927, which was in force in 1930, required the sheriff to whom the summons was addressed for service in this tax foreclosure action to serve it on the defendants within ten days after the date of its issue. Chapter 15, Public Laws of North Carolina, Session 1939, amended the ten days requirement, and enlarged the time for service of summons in tax foreclosure actions to within sixty days after the date of its issue. This is the present law. G.S. § 1-89.

There is no suggestion in the instant case of the issuance and service on the defendants of any alias or pluries summons. The defendants neither answered nor demurred. The judgment entered was a default judgment.

The authority of the sheriff to serve the summons in this case on the defendants was limited by the statute in force at the time to within ten days after the date of its issue. If the sheriff failed to serve the summons addressed to him upon the defendants within the time prescribed by the statute, and this appears from the sheriff's return on the copy of the summons, this summons had lost its vitality and was functus officio when the sheriff served it. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215. As was said in Atwood v. Atwood, 233 N.C. 208, 63 S.E.2d 103, 105: "Hence it appears from the return of the sheriff that what he did as to service of the summons was at a time when the life of the summons had expired, and when he had no authority to serve it. Thus, the return, in a legal sense, is tantamount to a return of non-service."

Where there is no service of process, the court has no jurisdiction, and its judgment is void. A void judgment is a nullity, and no rights can be based thereon. Collins v. North Carolina State Highway & Public Works Comm., 237 N.C. 277, 74 S.E.2d 709; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460. "`The passage of time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.' 31 Am.Jur., 66; Annotation 81 A.S.R., 559." Now 30-A Am.Jur., 170. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311. See also, Board of Com'rs of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144.

An appearance to vacate a judgment entered by default cannot validate such default judgment, if it is void because rendered when the court had no jurisdiction. Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283.

This is the sole assignment of error of the appellants: "That the court erred in finding that the evidence was insufficient to sustain the motion of movants and entering an order denying movants' motion to set aside and vacate judgment No. 15368."

The assignment of error "that the court erred in finding that the evidence was insufficient to sustain the motion of movants" is not supported by an exception, and is broadside, in that it does not specifically and distinctly point out the alleged error so that in the assignment of error we can see the alleged error made by the judge. It is ineffectual because of noncompliance with the rules and decisions of this Court. Rule 19(3) and Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 544 et seq.; Caldwell v. Bradford, 248 N.C. 48, 102 S.E.2d 399; Putnam v. Triangle Publications, Inc., 245 N.C. 432, 96 S.E.2d 445; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351; Vestal v. Vending Machine Co., 219 N.C. 468, 14 S.E.2d 427.

The appeal entries state that the movants except to the signing of the judgment, and appeal to the Supreme Court. The appeal itself will be treated as an exception to the judgment. Ellis v. Atlantic Coast Line R. Co., 241 N.C. 747, 86 S.E.2d 406; Fidelity & Casualty Co. of New York v. Green, 200 N.C. 535, 157 S.E. 797.

*306 An exception to the signing of the judgment brings up for review two questions: (1) Do the facts found support the judgment, and (2) does any error of law appear upon the face of the record? City of Salisbury v. Barnhardt, 249 N.C. 549, 107 S.E.2d 297; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Bond v. Bond, 235 N.C. 754, 71 S.E.2d 53. It does not bring up for review the evidence upon which the findings are based. Suits v. Old Equity Life Insurance Co., 241 N.C. 483, 85 S.E.2d 602; Hoover v. Crotts, 232 N.C. 617, 61 S.E.2d 705; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609.

The motion and answer thereto raised questions of fact. It was the duty of the court "to hear the evidence, find the facts and render judgment." Harrington v. Rice, supra [245 N.C. 640, 97 S.E.2d 240.].

The trial judge found that "the record as offered by the movant is on its face erroneous as to dates of the issuance of summons, service of summons, and filing of complaint, and cannot be relied upon as a true and correct copy of the proceedings in said cause." This is a conclusion, and not a finding of facts. The judge should have found with particularity the facts, so that we can determine whether the facts found support the judgment.

The trial court found as a fact "that after the rendition of the said judgment that none of the purported owners of said land ever listed same for taxes and treated and considered said judgment as valid." Whether Herbert Ransom, and his predecessor in title Ernest R. Ashley ever listed the land for taxes, and whether they and the Robinsons treated and considered said judgment as valid are not before us for decision, on the motion of appellants directed solely to the alleged lack of jurisdiction of the court to render the judgment by default, because the service of summons upon the defendants was not made within the time required by statute from the time of its issuance. Herbert Ransom and the Robinsons, if they so desire, can litigate their contentions another day and in another proceeding.

We are of opinion that the court below has not sufficiently found the facts so that we can accurately and safely pass upon the judgment denying appellants' motion.

Error and remanded.