Stallings v. Gully, 48 N.C. 344, 3 Jones 344 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 344, 3 Jones 344

S. C. STALLINGS vs. GEORGE G. GULLY, et. al.

A judgment taken -without the defendant being brought in by process or appearing to the case, is void, and cannot be offered in evidence in a suit brought on it afterwards.

This was an action of assumpsit, commenced by warrant on a former judgment, before a Justice of tbe Peace, and brought by successive appeals to this Comt.

On the trial below, before Judge Person, a former judgment rendered by a Justice of the Peace, against the defendants, was offered in evidence. From the proceeding in which this judgment was obtained, it did not appear that the defendants, or either of them, had ever been cited to the trial, or served with notice of the day of trial, or that they, or anyone for them, made an appearance at that trial. For this cause, and others appearing on the face of the proceeding, the defendants objected to the judgment’s being received in evidence ; but it was agreed that it should be received, and a verdict rendered subject to the opinion of the Court, on a question reserved as to the admissibility of the evidence; with a further agreement, that if the Court should be against the plaintiff, on the point of law, a nonsuit should be entered, otherwise the verdict should stand. His Honor, on consideration of the question of law, being of opinion with the plaintiff, so adjudged, and defendants appealed.

Lewis, for plaintiff.

Ganimell and G. W. Haywood, for defendants.

Nash, C. J.

In all proceedings of a judicial nature, it is necessary that the person whose rights are to be affected, should in some way be a party to the proceedings. The cases affecting the revenue laws, in authorising summary judgment against delinquent collecting officers, are exceptions. It is not sufficient for the Court to have jurisdiction of the subject matter in contest; they must also have jurisdiction of the person. It is a clear dictate of justice, that no man shall be deprived of his rights of person or property without the privilege of being heard.

The action before us commenced by warrant, and is founded on a prior magistrate’s judgment. To sustain his action the plaintiff gave in evidence, the judgment as set out in the case. There was no evidence, by endorsement or otherwise, that the warrant had ever been served on the defendant, or that he had appeared to the case. Objection was made to the competency of the judgment as evidence ; but his Honor ruled it was competent, and gave judgment upon the case agreed, for the plaintiff. In this there is error. In the case of Armstrong v. Harshaw, 1 Dev. Rep. 187, the Court say, the constitution and the laws of the country guaranty the principle that no freeman should be divested of a right by the judgment of a Court, unless he shall have been made a party to the proceedings in which it shall have been obtained.” Here, the defendant, as far as the case discloses, in the original proceedings, was no party to them, either by service of the process or by appearance.

But it is said that judgment was rendered by a Court having jurisdiction of the subject matter, and, until reversed, is still in full force, and cannot be impeached in this collateral way. The principle is correct. The judgment of a Justice of the Peace, acting within the range of his proper authority, though not a record, properly speaking, is a record to some purposes; it establishes, for instance, the state of the controversy between the parties, so that in an action on a contract, if against the defendant, to the effect that he owes the plaintiff the money ascertained by it at the time of the rendition, and while unreversed, both parties are bound. But unfortunately for the plaintiff’s argument, that which he relies on as a judgment is not a judgment. Though pronounced by a magistrate as such, it is absolutely void and of no effect. However erroneous or irregular a judgment may be, yet, as long as it stands unreversed, it is the act of the Court and carries with it absolute verity. But if what is offered in evidence, lias only tbe semblance of a judgment, as if rendered by a Court having no jurisdiction, or against a person who has had no notice to defend his rights, it is nota judgment. Jennings v. Stafford, 1 Ire. 404. Whenever, therefore, a judgment at Law or a decree in Equity, is offered in evidence, it is requisite to set forth'so much of the pleadings and orders as to show that the one was pronounced and the other given in a cause properly constituted between the parties. Williamson v. Redford, 10 Ire. Rep. 198, reaffirmed in Lyerly v. Wheeler, 11 Ire. Rep. 288. The original judgment, therefore, upon which the action is brought, being absolutely void, was, in Law, no judgment, and in admitting it in evidence there was error.

Per Curiam.

Judgment reversed, and judgment of non-suit.