Page v. . McDonald , 159 N.C. 38 ( 1912 )

This is an action by the plaintiff to recover $500 for professional services, as an attorney at law, rendered to the defendant, at his request, and for which he promised to pay the said sum. The defendant is not a resident of this State. The action was commenced by issuing a summons returnable to September Term, 1909, of the Superior Court of Montgomery County, upon which the sheriff returned that the defendant could not be found in his county. Upon affidavit filed, a warrant of attachment was issued and levied by the sheriff upon property of the defendant in said county. The action was commenced too late to publish the summons before September term of the court, but upon affidavit filed after the term, publication of the summons and warrant of attachment was made for the defendant, returnable to the next term. It is objected by the defendant that there are irregularities in the proceedings which are sufficient to vitiate the attachment, and, therefore, he is not properly before the court, and the judgment rendered for the debt is void. He entered a special appearance for the purpose of moving to set aside the judgment and the attachment and dismissing the action because of said defects.

We think it sufficiently appears that the warrant of attachment was returnable to the court in term, as the date of the beginning of the term is given, and the summons is expressly made returnable to term, the corresponding date being also given. This being so, the process can be amended, if necessary, so as to cure the informality. Revisal, secs. 507 and 509. Besides, the publication gave defendant sufficient (41) notice that the warrant could be vacated by him at January Term, 1910, if it was insufficient. No real right of his has, therefore, been prejudiced. It is the policy of our Code system that amendments of process, pleadings, and proceedings should be liberally allowed, so that causes may be tried or heard upon their merits, and to prevent a failure of justice for reasons, sometimes technical, if not frivolous, which do not affect the substantial rights of the parties. Pell's Revisal, sec. 507, and cases cited in the note. "The court or judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect." Revisal, sec. 509. Where, in a proceeding of attachment, it appears from the whole record that the provisions of the statute have been substantially complied with, the action will not be dismissed nor the attachment dissolved. Grant v. Burgwyn, 79 N.C. 513; Best v.Mortgage Co., 128 N.C. 351. Where process is erroneously made returnable before the clerk, instead of to the term of the court, the court at term, having afterwards acquired jurisdiction, may make all necessary amendments of the process and proceedings in order to give effectual jurisdiction, and such amendment may be considered as made if no intervening and vested right is injuriously affected. Elliott v. Tyson,117 N.C. 114; Ewbank v. Turner, 134 N.C. 77. The process, when amended, justifies the original service or any official action previously taken under it, if the intervening rights of innocent persons are not prejudiced. Elliott v. Tyson, supra. But it appears by reasonable intendment, in this case, that the process of attachment is and was made returnable to the term of the court, and if this were not so, the slight informality will be removed by amendment or disregarded, and the court has ample power and discretion in the premises. These objections to the form of the process and the right of amendment are fully met and answered in Grant v. Burgwyn and the other cases cited supra, and especially by Bank v. Blossom, 92 N.C. 695, where it was held (42) that the court in the exercise of its discretion may order a new publication to be made and defects to be cured by amendment. Nor do we think the objection to the affidavits, upon which the attachment was issued, is sound. The statute was sufficiently followed in this respect (Pell's Revisal, sec. 759 and note); and the affidavit for publication was also sufficient. Revisal, sec. 442. The affidavits show that the defendant cannot, after due and diligent search, be found in this State, and is a nonresident thereof, and has property in this State; that the court has jurisdiction of the action, and that the plaintiff has a cause of action against the defendant, arising out of contract, by which he expressly promised to pay a specific sum, $500, for professional services rendered at his request, which is now due and owing. What Chief Justice Smith said inBank v. Blossom is peculiarly appropriate to be repeated here: "It is a singular coincidence that the defendant makes a special appearance, as he may do according to the rules of practice, and comes into court complaining of the disregard of some technical provision necessary to give him legal notice of what his presence and motion show he already, in fact, knows, and then objects to the plaintiff being permitted to give him legal notice." He has lost no right by any irregularity in the course of the proceeding, but will have his day in court and can set up his defense, if he has a meritorious one, and defeat the plaintiff's recovery, as will be shown hereafter.

We now come to the serious and really the only material question in this case. Defendant requested the court to set aside the judgment and allow him to defend the action. This application was made upon affidavit, which alleged that the defendant has a good and meritorious defense to the action, and the judge substantially so finds as a fact, and that the defendant had no actual notice of the pendency of the action until after the judgment was rendered therein. The judgment was given at January Term, 1910, and the motion to vacate it was made on 21 March, 1910, within the time fixed by statute. The statute requires that a nonresident, upon good cause shown, must be allowed to defend after judgment, if his application to do so is made within one year after notice of the judgment, and within five years after its rendition, (43) preserving the rights acquired by innocent purchasers. Pell's Revisal, sec. 449. We cannot imagine any better cause for setting aside a judgment recovered upon constructive or substituted service than that which is assigned by the defendant in this case. He had no knowledge of the judgment and was not guilty of any laches, and he has a good defense. The right to be let in for the purpose of defending the action does not depend upon the exercise of the judge's discretion. The terms of the statute are mandatory, and the judge must set aside a judgment and permit a defense if good cause can be shown, and what is sufficient cause must be a question of law. Bacon v. Johnson, 110 N.C. 114. There was no neglect shown, excusable or inexcusable. In Rhodes v.Rhodes, 125 N.C. 191, the Court took this view, wherein the presentChief Justice said: "The object of this section is to enable a nonresident who has not been personally served with summons to come in within the prescribed time after judgment and assert his rights as fully in every respect as he could have done before judgment, had he been personally served, saving, as the section provides, the rights of any one who has bought the property in good faith under the decree of sale in the cause. The defense intended to be allowed one who has not been actually, but only constructively, in court, is not confined to those matters which, if pleaded in apt time, would defeat the action. Being a remedial statute, a just construction is that it allows the party against whom a judgment has been taken to set up also any exception which would have prevented or modified the judgment." The judge sustained the attachment proceedings, but refused to set aside the judgment and to permit the defendant to come in and make good his defense. In the latter ruling there was error. The judgment will be vacated, and defendant will be allowed to defend the action, and for that purpose will be given a reasonable time, to be fixed by the court, for filing his answer or other pleading. The property attached will remain in the custody of the court, to await the determination of the action. This secures the plaintiff, if he has a good cause of action and is able again to obtain a judgment. He is not, in law or equity, entitled to any more. It is unnecessary, after what has been said, to consider defendant's objection that the (44) judgment by default was irregularly entered, there having been no proper proof of the indebtedness under Revisal, sec. 556, as we have ordered the judgment to be vacated on another ground. Defendant may release his property from the attachment by complying with the provisions of Revisal, secs. 774 and 775. The case is remanded, with direction to proceed as herein indicated.

Error.