Armstrong v. Harshaw, 12 N.C. 187, 1 Dev. 187 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 187, 1 Dev. 187

James L. Armstrong & another v. John Harshaw.

From Burke.

im-JRy i int against a Defendant named in the writ, but not made a eithfr by service, pu die notice or attaching his estate, is y void, and should be disregarded when produced on nul tiei

Dj^bt — The Plaintiffs declared upon a jndgment recovered in the State of Tennessee, and the Defendant pleaded “ nul tiel recordOn the trial, before Strange Judge, the Plaintiff produced a duly certified transcript of proceedings had in Bedford county, in Tennessee, by which it appeared on an affidavit made by the Plaintiffs, thát the Defendant had absconded or concealed himself so tlmt process could not be served on him, a writ fef attachment issued, against bis estate, which was levied on a quantity of corn, supposed to be his property, and the lew indorsed on the writ, and an order was made to sell the corn, upon which the’officer returned that no money had been made in consequence of older attachments having been previously levied on the same corn. At the succeeding term of the Court, the writ being returned with these indorsements, the Plaintiffs tiled their declaration, signed judgment by default, and their damages being assessed by a jury at the next term, a final judgment was entered.

On the production of this record, the presiding Judge gave judgment for the Plaintiffs, and the Defendant appealed.

Wilson, for the Defendant, submitted the case without argument. ■».*

Ham, Judge

The constitution and laws of the country, guaranty the principle, that no freeman shall be divested of a right by the judgment of a Court, unless he shall have been made party to the proceeding in which it shall have been obtained. When personal notice cannot be given, it must be dispensed with from necessity, and that must be done which is next most likely to answer the same purpose, public notice must be giv* or the Defendant’s property must be laid hold of. The latter mode was directed and attempted to be adopted in the present case, and had it succeeded, the Plaintiff would have been authorised to proceed to judgment, because the property when letied upon, represented its owner, and of course, was liable to that judgment, but no properly of the Defendant was levied upon, his right to the corn was divested by older process, and judgment was obtained against him when he was not made party to the proceedings in any way known to the law.

I cannot therefore, consider it a sufficient and legal foundation for the judgment rendered in this case. I am consequently of opinion, that the rule for a new trial should be made absolute.

Per curiam. — Judgment awarded. reversed and new trial