Hill v. Hill , 11 N.C. App. 1 ( 1971 )

180 S.E.2d 424 (1971) 11 N.C. App. 1

Billie Jean Jennings HILL
v.
Bernard Larry HILL, also known as Broadus Bunk Hill.

No. 7126DC50.

Court of Appeals of North Carolina.

April 28, 1971.

Hicks & Harris by Richard F. Harris, III, Charlotte, for plaintiff appellant.

Olive, Howard & Downer by Carl W. Howard, Charlotte, for defendant appellee.

MALLARD, Chief Judge.

Plaintiff contends that the court committed error in setting aside the default judgment entered on 14 September 1970. In the motion of the defendant to set aside the judgment, it is alleged that it was based upon an unverified complaint and did not comply with G.S. § 1A-1, Rule 11(c) and G.S. § 1-75.11.

Under G.S. § 1A-1, Rule 11(a), it is not necessary that pleadings be verified or accompanied by an affidavit unless otherwise specifically provided by the rules or by statute. Defendant appellee contends that the provisions of G.S. § 1A-1, Rule 11(c) require verification of the pleadings when the action or defense is founded upon a written instrument for the payment of money. We do not agree. G.S. § 1A-1, Rule 11(c) sets forth the circumstances and the manner in which pleadings may be verified by an agent or attorney of a party when the action or defense is founded upon a written instrument for the payment of money only, but it does not specifically require verification.

A judgment entered contrary to the statutes and Rules of Civil Procedure is void. A judgment by default is void if the court is without jurisdiction. G.S. § 1-75.1 et seq. Void judgments are legally ineffective. They have semblance but are lacking in an essential element or elements, and they may always be treated as nullities. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958); Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283 (1934); Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434 (1913); 5 Strong, N.C.Index 2d, Judgments, § 16.

In order for a valid judgment to be entered in an action against a nonappearing defendant, there must be compliance with the provisions of G.S. § 1A-1, Rule 55, as well as G.S. § 1-75.11. G.S. § 1A-1, Rule 55 requires that before the clerk can "enter his default" it must be made to appear by "affidavit or otherwise" that the party against whom a judgment for affirmative relief is sought has failed to plead or is otherwise subject to default judgment as provided by law. G.S. § 1-75.11 requires that before entering a judgment against a nonappearing defendant, there must be proof of jurisdiction.

G.S. § 1-75.11 reads in pertinent part as follows:

"Where a defendant fails to appear in the action within apt time the court shall, before entering a judgment against such defendant, require proof of service of the summons in the manner required by § 1-75.10 and, in addition, shall require further proof as follows:

(1) Where Personal Jurisdiction Is Claimed Over the Defendant.—Where a personal claim is made against the defendant, the court shall require proof by affidavit or other evidence, to be made and filed, of the existence of any fact not shown by verified complaint which is needed to establish grounds for personal jurisdiction over the defendant. The court may require such additional proof as the interests of justice require.

(2) Where Jurisdiction Is in Rem or Quasi in Rem.—Where no personal claim is made against the defendant, the court shall require such proofs, by affidavit or otherwise, as are necessary to show that the court's jurisdiction has been invoked over the status, property or thing which is the subject of the action. The court may require such additional proof as the interests of justice require." (Emphasis Added.)

The defendant did not appear in apt time after he was personally served with summons and unverified complaint. G.S. § 1A-1, Rule 12(a) (1). The parties stipulated "that Summons and Complaint in this action were issued on the 5th day of August, 1970, and thereafter served on the defendant personally on the 6th day of August, 1970." The summons and the certificate of the officer showing the service are not contained in this record, and we therefore assume they were correct and proper in form. A proper summons gives no information as to the nature of an action. G.S. § 1A-1, Rule 4(b).

The certificate of the officer who served the summons and complaint herein showing the place, time, and manner of the personal service on the defendant may have been a part of the "evidence presented by plaintiff's attorney" referred to in the preface of the judgment. The summons and certificate of service, if properly presented, would have been proof of the first requirement of G.S. § 1-75.11 with respect to proof of the service of summons on a natural person present in the State and not under disability. However, they would not meet the requirement that further proof of jurisdiction be offered before judgment against a nonappearing defendant may be entered. There is a distinction between obtaining jurisdiction by service of process and the proof of jurisdiction as required by G.S. § 1-75.11 before entry of a judgment against a nonappearing defendant. Under G.S. § 1-75.11, proof of service of summons is only part of the proof necessary to establish grounds for personal jurisdiction before entering the judgment.

The additional proof required is that an "affidavit or other evidence" be made and filed of the existence of any fact needed to establish grounds for personal jurisdiction over a defendant which is not shown by a verified complaint. The filing of the affidavit or other evidence is required under G.S. § 1-75.11 and is necessary before jurisdiction is established and a judgment against a nonappearing defendant may be entered. Here we have no verified complaint and no affidavit or "other evidence" appears in this record as having been filed pertaining to the grounds for personal jurisdiction over the defendant.

"Jurisdiction is the power of the court to decide a case on its merits and presupposes the existence of a duly constituted court with control over the subject matter and the parties. The issue must be brought before the court in a proper proceeding. * * *

The general rule is that the fact that a court of general jurisdiction has acted raises a prima facie presumption of rightful jurisdiction, and the burden is upon the party asserting want of jurisdiction to show it. * * *" 2 Strong, N.C.Index 2d, Courts, § 2.

However, personal jurisdiction over a nonappearing defendant for the purpose of the entry of a judgment by default is not presumed by the service of summons and an unverified complaint but must be proven and appear of record as required by G.S. § 1-75.11.

General jurisdictional requirements are set forth in G.S. § 1-75.1 et seq. The question of jurisdiction over the subject matter is not presented on this record. The jurisdictional requirements for a judgment against a person are set forth in G.S. § 1-75.3, the pertinent parts of which are:

"* * * A court of this State having jurisdiction of the subject matter may render a judgment against a party personally only if there exists one or more of the jurisdictional grounds set forth in § 1-75.4 or § 1-75.7 and in addition either:

(1) Personal service or substituted personal service of summons, or service of publication of a notice of service of process is made upon the defendant pursuant to Rule 4(j) of the Rules of Civil Procedure; or

(2) Service of a summons is dispensed with under the conditions in § 1-75.7."

The applicable jurisdictional grounds set forth in G.S. § 1-75.4 are as follows:

"A court of this State having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to Rule 4(j) of the Rules of Civil Procedure under any of the following circumstances:

* * * In any action, whether the claim arises within or without this State, in which a claim is asserted against a party who when service of process is made upon such party:

a. Is a natural person present within this State * * *."

The provisions of G.S. § 1A-1, Rule 4(j) read in part:

"Process—manner of service to exercise personal jurisdiction.—In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process shall be as follows:

* * * Except as provided in subsection (2) below, upon a natural person:

a. By delivering a copy of the summons and of the complaint to him or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein * * *."

Assuming that the certificate of service of summons and unverified complaint is in compliance with the provisions of G.S. § 1A-1, Rule 4(j) (1) (a), it is not sufficient to prove the added jurisdictional requirements of G.S. § 1-75.11 before a valid judgment by default could be entered against this nonappearing defendant. An unverified complaint is not an affidavit or other evidence. There is no proof by affidavit or other evidence "made and filed" in this case showing that there was a claim arising within or without this State against a natural person, not under disability, and present within the State at the time of service of summons. (However, it does appear on the first page of the record under the heading "Plaintiff Appellant's Statement of Case on Appeal" that the defendant was personally served with process "at his residence in Charlotte.") We hold that the summons, the certificate of the officer serving it, and the unverified complaint are insufficient to establish the jurisdictional requirements for the judgment entered herein.

If the necessary proof required by G.S. § 1-75.11 was "made," it was not filed as required. For the failure of the record to show, as required by G.S. § 1-75.11, personal jurisdiction of the defendant by the court, the judgment entered herein was void and could be considered and treated as a nullity.

G.S. § 1A-1, Rule 60 provides that the court may relieve a party from a final judgment when the judgment is void upon motion made within a reasonable time and upon such terms as are just. The trial judge properly set aside the default judgment entered herein upon motion of the defendant.

It is not necessary for decision in this case, and we do not decide whether a responsive pleading was necessary under the new Rules of Civil Procedure. Averments in pleadings are admitted when not denied in a responsive pleading, if a responsive pleading is required. G.S. § 1A-1, Rule 8(d).

We do not deem it necessary to discuss whether the Virginia Decree of Absolute Divorce was properly authenticated as required by G.S. § 1A-1, Rule 44. Neither do we discuss or rule on the other contentions made by the parties herein; nor do we rule on the questionable but unquestioned authority of the district court judge to order the defendant arrested and confined upon the written request of plaintiff's attorney to the sheriff.

The order entered herein vacating the judgment by default is affirmed.

Affirmed.

PARKER and VAUGHN, JJ., concur.