Guerin v. Guerin, 208 N.C. 457 (1935)

Sept. 18, 1935 · Supreme Court of North Carolina

208 N.C. 457

F. J. GUERIN v. GERTRUDE GUERIN.

(Filed 18 September, 1935.)

1. Process B c—

Where service of summons is bad by publication, and tbe notice, as published, erroneously' states that the action is pending in a county other than the one in which the action is in fact pending, the service by publication is void.

2. Judgments K c—

Where judgment is rendered by default final upon a fatally defective service of summons by publication, tbe judgment is void, since jurisdiction of defendant is necessary to enable tbe court to render a valid judgment against bim.

S. Judgments It f—

Tbe proper procedure to set aside a void judgment is by a motion in the cause.

This is an appeal by tbe plaintiff from an order of Hill, Special Judge, at November Term, 1934, of AlamaNce, allowing tbe motion of tbe defendant to set aside a judgment of divorce theretofore entered in said cause at tbe April Term, 1934, of Alamance.

Affirmed.

Dulce & Bridges for plaintiff, appellant.

M. W. Nash and E. H. Smith for defendant, appellee.

SciiENCit, J.

It appears from tbe record that tbe only service of summons attempted in this case was service by publication. It further appears that tbe notice of summons, as published in The Alamance Gleaner, was in the following words: “Tbe defendant Gertrude Guerin will take notice that an action entitled as above has been started in tbe Superior Court of Durham County, North Carolina, and a duly verified complaint has been filed there. Tbe purpose of said action is to secure an absolute divorce from tbe defendant, and tbe said defendant will further take notice that she is required to be and appear at tbe office of tbe clerk of tbe Superior Court of Alamance County, North Carolina, on 25 March, 1934, and answer or demur to tbe complaint or tbe relief therein prayed for will be granted.”

It is manifest that tbe defendant has never been given notice of any action by her husband against her in Alamance County. Tbe notice is that such action “has been started in tbe Superior Court of Durham County, . . .” Unless tbe defendant bad come in by answer in tbe Superior Court of Alamance County, where tbe case was actually pending, she would not be in court at all, and any judgment against her would be without warrant of law. As was said by Merrimon, J., in Stancill v. Gay, 92 N. C., 462, “Jurisdiction of tbe party, obtained by tbe court in some way allowed by law, is essential to enable tbe court to give a valid judgment against bim.” Since tbe defendant, tbe movant, has never been given notice of any action pending against her in Ala-mance County, she has never been served with process, and for that reason tbe judgment entered against her was void and her motion to set tbe same aside was properly allowed. “A void judgment is no judgment, and may always be treated as a nullity. A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exceptions.” Harrell v. Welstead, 206 N. C., 817.

Since the judgment was void for want of valid service of process, a motion in the cause to set said judgment aside was the proper procedure, and the order allowing said motion was properly entered. Fowler v. Fowler, 190 N. C., 536.

Affirmed.