Mills v. Richardson , 240 N.C. 187 ( 1954 )

81 S.E.2d 409 (1954) 240 N.C. 187

MILLS
v.
RICHARDSON.

No. 457.

Supreme Court of North Carolina.

April 28, 1954.

Thomas W. Ruffin, Raleigh, for plaintiff-appellee.

A. J. Fletcher, F. T. Dupree, Jr., G. Earl Weaver, Raleigh, for defendant.

BOBBITT, Justice.

Did the court below, at the Second February (1954) Civil Term, have authority, upon withdrawal of plaintiff's appeal, to strike out the judgment dismissing the action entered at the First February (1954) Civil Term? Authoritative decisions compel a negative answer.

The plaintiff, having appealed from the judgment entered at the First February (1954) Term, elected to abandon or withdraw her appeal. She had a legal right to do so.

However, upon abandonment or withdrawal of her appeal, the judgment from which her appeal was taken remained unchallenged. This was a final judgment, which by its express terms sustained the demurrer and dismissed the action. True, if it had sustained the demurrer, without dismissing the action, the plaintiff, within thirty days from 2 February, 1954, upon notice, could have moved for leave to amend. G.S. § 1-131. Harris v. Board of Education, 217 N.C. 281, 7 S.E.2d 538.

Our decisions draw a distinction between (1) a defective statement of a good cause of action and (2) a statement of a defective cause of action. Davis v. Rhodes, 231 N.C. 71, 56 S.E.2d 43, and cases cited. Scott v. Statesville Plywood & Veneer Co., N.C., 81 S.E.2d 146. In each instance, the demurrer should be sustained. Where there is a defective statement of a good cause of action, the complaint is subject to amendment; and the action should not be dismissed until the time for obtaining leave to amend has expired. G.S. § 1-131. But where there is a statement of a defective cause of action, final judgment dismissing the action should be entered.

In Davis v. Rhodes, supra, the plaintiff alleged that his intestate was killed by the negligence of the defendant in an automobile-motor scooter collision. The demurrer was sustained on the ground that the complaint did not set forth the facts constituting the alleged negligence. The trial judge dismissed the action. This Court reversed on the ground that, since the complaint was defective in its statement of a good cause of action, it was subject to amendment.

In Scott v. Statesville Plywood & Veener Co., supra, this Court upheld the trial court in sustaining the demurrer and in dismissing the action since the allegations of the complaint affirmatively disclosed that there was a defective cause of action, i. e., that the plaintiff had no cause of action against the defendant.

As stated by Pearson, C. J., in Garrett v. Trotter, 65 N.C. 430: "When there is a defect in substance, as an omission of a material allegation in the complaint, it is a defective statement of the cause of action; and the demurrer must specify it, to the end that it may be amended by making the allegation. And when there is a statement of a defective cause of action, the demurrer must specify, to the end that as there is no help for it, the plaintiff must stop his proceeding without a further useless incurring of costs."

Conceding, without deciding, see Wilson v. Dowtin, 215 N.C. 547, 2 S.E.2d 576; Leavitt v. Twin County Rental Co., 222 N.C. 81, 21 S.E.2d 890, that the amended complaint contained a defective statement of a good cause of action, the judgment at the First February (1954) Term, in respect of its dismissal of the action, was entered upon a mistaken principle of law or, as the plaintiff put it in her motion, "contrary to GS 1-131."

The distinction between void, erroneous and irregular judgments was pointed out by Merrimon, C. J., in Carter v. Rountree, 109 N.C. 29, 13 S.E. 716, 717, as follows: "A void judgment is one that has merely semblance, without some essential element or elements, as when the court purporting to render it has not jurisdiction. An irregular judgment is one entered contrary to the course of the court,—contrary to the method of procedure and practice under it allowed by law in some material respect; as if the court gave judgment without the intervention of a jury, in a case where the party complaining was entitled to a jury trial, and did not waive his right to the same. Vass v. [People's Building & Loan] Association, 91 N.C. 55; McKee v. Angel, 90 N.C. 60. An erroneous judgment is one rendered contrary to law. The latter cannot be attacked collaterally at all, but it must remain, and have effect, until by appeal to a court of errors it shall be reversed or modified. An irregular judgment may ordinarily and generally be set aside by a motion for the purpose in the action. This is so, because in such case the judgment was entered contrary to the course of the court, by inadvertence, mistake, or the like. A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity." (Emphasis added.) The later decisions are in full accord: Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554. See McIntosh, N.C. P. & P., 734-737.

The judgment entered at the First February (1954) Term was not void, for the court had jurisdiction of the parties and over the subject matter. It was not irregular, for the cause came on regularly for hearing and was heard and judgment entered. Indeed, the appellee's contention is that it was rendered contrary to law, that is, based upon an erroneous application of legal principles. The order of 22 February, 1954, refers to the dismissal of the action as "erroneous." If this be conceded, it was an erroneous judgment. Stafford v. Gallops, supra. In such case, upon expiration of the term at which the judgment was rendered, it could be corrected only by this Court; for as stated by Professor McIntosh, "after the term neither the judge who rendered the judgment nor another judge holding the court can set it aside for such error, and the only remedy is an appeal or a certiorari as a substitute for an appeal." McIntosh, N.C. P. Simmons v. Dowd, 77 N.C. 155; May v. Stimson Lumber Co., 119 N.C. 96, 25 S.E. 721; Henderson v. Moore, 125 N.C. 383; 34 S.E. 446; Becton v. Dunn, 142 N.C. 172, 55 S.E. 101; Caldwell v. Caldwell, 189 N.C. 805, 128 S.E. 329; Phillips v. Ray, 190 N.C. 152, 129 S.E. 177; Wellons v. Lassiter, 200 N.C. 474, 157 S.E. 434; Williams v. Williams, 190 N.C. 478, 130 S.E. 113; Clark v. Cagle, 226 N.C. 230, 37 S.E.2d 672; Dellinger v. Clark, 234 N.C. 419, 67 S.E.2d 448.

The judgment entered at the First February (1954) Term, in consequence of the plaintiff's wthdrawal or abandonment of her appeal, being a final judgment dismissing the action, the court below was without authority to re-instate the action and allow further amendment of the complaint. The order of 22 February, 1954, allowing plaintiff's motion of 16 February, 1954, purported to do so. This affected a substantial right of the defendant. He was entitled to appeal therefrom. G.S. § 1-277. His assignment of error is well taken and the order of 22 February, 1954, is reversed.

Reversed.