Owens v. Voncannon , 251 N.C. 351 ( 1959 )

PARKER, J.,

concurring in the majority opinion. This is an appellate Court, and our duty is to review alleged errors of the trial court. Greene v. Spivey, 236 N.C. 435, 73 S.E. 2d 488; Art. IV, Section 8, of the North Carolina Constitution.

“This Court cannot find the facts: it has no authority to do so. In such a case, it is the duty of the Superior Court to find the facts upon which its orders and judgments rest, and to set them forth in the record. This is necessary to the orderly course of procedure.” Bank v. Blossom, 89 N.C. 341.

When the motion was heard by Judge Thompson, movent was the only witness: no other evidence was offered. Her testimony was to the effect that she never authorized Sam W. Miller to consent to the judgment entered against her.

A joint answer appeal’s in the record filed in apt time by movent and the other defendants. Judge Thompson in his judgment finds as ia fact that “an 'answer was filed on her (movent’s) behalf by her counsel of record.”

In my opinion, the basis of the decision in Town of Bath v. Norman, 226 N.C. 502, 39 S.E. 2d 363, is sound. A purported consent judgment by one having no authority is void, and a showing of merit as to the defense is not required to vacate a void judgment. “ ‘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. Exnihilo nihil fit is one maxim that admits of no exceptions.” Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283.

The lower court has not ruled on movent’s motion and evidence that she never 'consented to the judgment entered against her. No matter how busy the Superior Court may be, due process and fair play require a ruling below on movent’s contention that she never consented to the judgment entered against her, regardless of what the ultimate result may be.

In my ppinion, the Judge below in deciding the motion acted under a misapprehension of the applicable law. Such being the case, the proceeding should be remanded to the Superior Court for further hearing. McGill v. Lumberton, 215 N.C. 752, 3 S.E. 2d 324; S. v. Grundler, 249 N.C. 399, 106 S.E. 2d 488.