Raleigh Banking & Trust Co. v. Nowell, 195 N.C. 449 (1928)

April 11, 1928 · Supreme Court of North Carolina

195 N.C. 449

THE RALEIGH BANKING & TRUST CO. v. VIRGINIA N. NOWELL, W. B. STARKE and H. H. NOWELL.

(Filed 11 April, 1928.)

1. Judgment — Setting Aside for Void Service of Summons — Degree of-Proof.

Where the summons in an action has been duly served on a party defendant by a proper process officer, it imports verity, and will not be set aside and a judgment vacated in the absence of clear and unequivocal proof that the summons had not in fact been served, and such proof must be more than the one affidavit by the defendant. C. S., 921.

3. Judgment — On Trial of Issues — Rendition, Form, and Requisites— Time of Rendition and Signing.

Where the judge, by consent, has heard a motion in a civil action, to set aside a judgment for want of service on the defendant, on supporting evidence sufficient in law, his action in so doing will not be disturbed on appeal when it is made to appear that he had awarded his decision at the time of hearing the motion and signed the judgment in conformity therewith a few days later, at a criminal term of court.

Appeal by plaintiff from Stack, J., at September Term, 1927, of Wake.

Affirmed.

Tbe judgment of tbe court below is as follows:

“Tbis cause coming on to be beard before bis Honor, A. M. Stack, judge bolding courts of tbe Seventh Judicial District, on tbe motion of tbe defendant, H. H. Nowell, to set aside as to bim tbe judgment rendered in tbis cause on 6 October, 1926, and being beard on 8 October, 1927, tbe court finds as a fact:

“1. That notice of motion of defendant, H. H. Nowell, to set aside said judgment was duly served on tbe plaintiff, and tbe said motion was duly filed in tbe office of tbe clerk of tbe Superior Court of Wake County on 24 September, 1927.

“2. That from tbe oral testimony of P. P. Sanders, tbe deputy sheriff by whom summons was alleged to have been served upon tbe defendant, H. H. Nowell, and from the oral testimony of tbe defendant, H. H. Nowell, and from tbe affidavits filed herein by tbe plaintiff and said defendant that summons has not, at any time, been served upon said defendant, H. H. Nowell.

“3. Tbe court further finds that tbe return on tbe summons alleged to have been served upon tbe defendant, H. H. Nowell, is not in tbe bandwriting of tbe said P. P. Sanders, deputy sheriff.

“4. The court further finds as a fact that tbe defendant, H. H. Nowell, has a meritorious defense to the plaintiff’s alleged cause of action.

“It is therefore ordered and adjudged that tbe judgment rendered in tbis cause on 6 (8) October, 1926, and which appears in Judgment Docket No. 28, at page 240, be and it is hereby set aside as to defendant, H. H. Nowell.

“It is further ordered and adjudged that tbe defendant, H. H. Nowell, have until 1 November, 1927, in which to answer amended complaint filed herein or demur thereto.”

J ones & J ones and J. W. Bailey for plaintiff.

Douglass & Douglass for defendant.

ClakksoN, J.

C. S., 921, is as follows: “When a notice issues to tbe sheriff, bis return thereon that tbe same has been executed is sufficient evidence of its service.” See cases cited under tbis section.

In Lake Drainage Comrs. v. Spencer, 174 N. C., at page 37-8, it is said: “While this is one of the States in which the return on the process is not conclusive, even between the parties and privies to the action, Still, under Revisal, 1529 (C. S., 921, supra) and the authorities above cited, such return is prima facie correct, and cannot be set aside unless the evidence is ‘clear and unequivocal.’ 32 Cyc., 517. It would work the greatest mischief if after a judgment is taken it could be set aside upon the slippery memory of the defendant, perhaps years thereafter, that be bad not been served. This would shake-too many titles that rest upon the integrity of judgments and the faith of purchasers and others relying thereon. The return of the sheriff is by a disinterested person acting on oath in his official capacity and made at the time.” Caviness v. Hunt, 180 N. C., 385; Long v. Rockingham, 187 N. C., 199; Fowler v. Fowler, 190 N. C., 536.

The statement of the case on appeal shows “That said motion came on to be beard before bis Honor, Judge A. M. Stack, on 8 October, 1927, by consent of plaintiff and defendants.” . . . “His Honor, Judge A. M. Stack, thereupon stated in open court that be would find tbe fact that summons was not served, and that be would render judgment setting aside tbe judgment against H. H. Nowell hereinbefore entered in this action, to which tbe plaintiff, tbe Raleigh Banking & Trust Company, in open court gave notice of exception and appeal.”

Tbe record shows that tbe evidence was all beard by tbe court below on 8 October, and tbe judgment rendered on that day, but not actually signed until 12 October, tbe following week during a term of criminal court of "Wake County, which was duly held by tbe same judge.

We can see nothing prejudicial in signing in writing the judgment of 12 October, rendered on 8 October, 1927. The exception and appeal was taken to the judgment as rendered on 8 October. The signing later was a mere matter of convenience, no rights affected. Tbe judgment put in writing was the same as rendered.

From a careful inspection of tbe record, we think that the evidence is “clear and unequivocal,” that the summons was not served according to law. It has been held in this jurisdiction that a return of a sheriff of the service of a writ cannot be contradicted by the defendant’s affidavit that the writ was not served. The return is prima facie true and cannot be contradicted by a single affidavit. The service of process or other papers are very serious matters and should not be set aside lightly. They import verity. Hunter v. Kirk, 11 N. C., 277; Mason v. Miles, 63 N. C., 564; Strayhorn v. Blaylock, 92 N. C., 292; Chadbourn v. Johnston, 119 N. C., 282; Comrs., v. Spencer, supra; Caviness v. Hunt, supra. For the reasons given, tbe judgment is

Affirmed.