Simmons v. Defiance Box Co., 148 N.C. 344 (1908)

Sept. 23, 1908 · Supreme Court of North Carolina
148 N.C. 344


(Filed 23 September, 1908.)

1. Summons — Judgment—Improper Service — Motion in the Cause.

' A motion to set aside a judgment for lack of service is the proper procedure, and it is for the court to find the facts and correct the record to speak the truth. If as a fact there was no proper service or appearance, the judgment is void.

2. Procedure — Motion in the Cause — Direct Proceedings.

A motion in the cause, when appropriate, is á direct proceeding.

3. Corporation — Summons—Service—Foreman—Proper. Officer.

Service of summons on a foreman of a corporation, who acts under orders of a superintendent who is present at the time, is not upon a person on whom valid service for a corporation can be made.

MotioN by defendant to set aside judgment for want of service, beard by 17. B. -Allen, J., at February Term, 1908, of Cea ven.

Motion denied. Plaintiff appealed.

17. D. Mclver and B. A. Nunn for plaintiff.

H. L. Gibbs and Simmons, Ward & Allen for defendant.

OijARK, C. J.

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 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 *345Term tbe inquiry was executed, and judgment final was entered on tbe verdict. At February Term, 1908, motion was made to set aside tbe judgment, on tbe ground that there bad been no legal service of tbe summons upon tbe defendant company.”

Tbe plaintiff moved to dismiss tbe motion, on tbe ground that the remedy was by civil action. Tbe 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 tbe parties are entitled to bave»fonnd by a jury. Tbe judgment is not void for fraud, but voidable. On tbe face of tbe record it is regular. But when it is sought to set aside a judgment for irregularity, in that there has been no service of siunmons, it is for tbe court to find tbe facts and correct tbe record to .speak tbe truth, and if in fact there was no service of summons or appearance by tbe defendant (which would waive service of summons), tbe judgment is void. Smathers v. Sprouse, 144 N. C., 637, and cases there cited. Tbe words used in that case, “direct proceeding,” do not mean “an independent action.” A motion in tbe cause, when appropriate, is a direct proceeding. In tbe well-known case of Harrison v. Harrison, 106 N. C., 282, it was held that when there was no service of process tbe judgment could be set aside by motion in tbe cause.

“Where it appears from the record that a person was a party to an action, when in fact he was not, tbe legal presumption that be was a party is conclusive .until removed by a correction of the record itself, by a direct proceeding for that purpose.” Sumner v. Sessoms, 94 N. C., 377. This means by motion in tbe cause,- for tbe court corrects the record to speak tbe truth. To same purport, Doyle v. Brown, 72 N. C., 393, where it is said: “Where tbe summons was not served on defendant and be did not enter an appearance nor have any knowledge of the action until after default judg*346ment, the judgment is void and will be set aside, on motion.” In Flowers v. King, 145 N. C., 234, the summons had been served upon another man, who had the same name, and the Court said: “A party in such case is not allowed to seek redress from the action of one court through the conflicting action of another court or in a different and distinct proceeding in the same court.”

Ilis 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 the foreman of the round house, or any other foreman of a railroad, acting under orders of a superintendent who is present.