White v. White

Clark, C. J.

The cases being between the same parties, and the facts as to both being substantially similar, they can be treated as one in this appeal.

In the first ease, the wife, Josephine White, brought an action against her husband, the defendant, Charles H. WTiite, for divorce a mensa et thoro and alimony. Upon inspection of the record, the proceeding was regular and according to the course and practice of the Court in every particular. It appearing upon affidavit that the defendant could not after due diligence be found in this State, and that a cause of action existed against the defendant for divorce and alimony, it was ordered that publication be made in the manner required by law, and that said publication was duly made requiring the defendant to answer at the term of Mitchell Superior Court beginning the first Monday in April, 1914. The complaint was in regular form, and alleged that the parties were married; that the plaintiff had been a dutiful and faithful wife in every respect; that the plaintiff at the time of the marriage had some money, and an income with which she purchased their home in this State; that the defendant abandoned her; that she discovered that the defendant and a woman whom he had engaged as housekeeper had improper relations, whereupon the plaintiff drove her off; that the defendant, in 1911, soon after, abandoned the plaintiff and left the State; that in April, 1912, he returned to this State, and caused the plaintiff to be arrested upon the charge of insanity, and brought before the clerk for examination, who after such examination discharged the plaintiff and taxed the defendant with the costs. She further alleged that the house and lot on which she lived had been bought with her money, but the defendant had taken title in his ohm name. She further alleged that the defendant was then a professor in Harvard University obtaining a salary of $3,000 to $4,000. Whereupon she asked for alimony pending the action, and for a decree that the judgment should be declared a charge upon the land of defendant, which was fully described in the complaint. The affidavit to the complaint is in due form, as was the judgment and all the proceedings therein by which the judge allowed her $500 for alimony pending the action up to November Term, 1914, and decreed the same should be a lien on the property of the defendant in Mitchell County, which was set out and described in the complaint. Execution regularly issued upon this judgment, and under it, the said property was sold and purchased by the plaintiff 2 November, 1914, as returned by the- sheriff on said execution, at the sum of $500, which was entered as a credit on the judgment in favor of the plaintiff against the defendant. The plaintiff died in November, 1918, and the defendant, on 25 March, 1919, gave notice that he would move at the next term of the Superior Court to set aside the two judgments entered against the defendant at July Term, 1914, of Mitchell.

On hearing the motion, his Honor set aside both judgments in September, 1919, upon the ground that the defendant, Charles H. White, had no notice either of the pending suit or of the judgment rendered at July Term, 1914, until January, 1919; that the defendant has a good and meritorious defense; that no attachment was ever issued or levied in the cause. The plaintiff in the original judgment died in the latter part of 1918 and her executor, J. A. Gouge, qualified as her executor, and appeared in this cause to resist the motion.

His Honor was erroneously of the opinion that the failure to obtain personal service upon the defendant, or to obtain an attachment as a basis of the proceeding was an irregularity. The plaintiff excepts that there is no evidence which warranted the court in finding as a fact that the defendant had no notice of the proceeding.

The case on appeal states that there was no evidence on behalf of the defendant except his own affidavit in which he testifies that he “was never served with summons in either of the above named cases, and never heard of either judgment being entered against him until the first day of January, 1919.” He does not testify, as the judge inadvertently found, that he “had no notice whatever, either of the pending suit, or of the judgment signed until January, 1919.” On the contrary, there is the affidavit of M. L. Wilson, the counsel who brought these actions, who testified that after the complaints had been filed, and before judgment was taken, at the request of Mr. J. W. Pless, counsel for the defendant, he had a conference'with him for a settlement of the matters in controversy, that a settlement of said cases was agreed upon, the terms of the said agreement drawn up in legal form, and signed by the attorneys on both sides, but subject to the approval of the defendant, and later the counsel for the defendant informed him that his client had declined to approve the settlement, and thereafter the judgments were regularly obtained. WTiere there is any evidence, the findings of fact by the court are conclusive, but when there is no evidence to sustain a finding of fact, it must be set aside. In corroboration of the testimony of M. L. Wilson are the affidavits of J. A. Gouge that in October, 1916, more than two years after judgment was taken in both said cases, the defendant wrote him from Cambridge, Mass., about the property, and said that his wife’s need was not so urgent, as she was in possession of the property, and though she could not sell it at the price she wanted, she ought to be able to get a loan upon it as security, and a copy of his letter to that effect is attached. There was no evidence offered that the defendant did not have notice of these actions prior to the judgment.

Alimony is an allowance for the support of the wife, and the amount may be increased or reduced, for cause, from time to time. But it is never ordered to be paid back, as is sought in this case — especially would this be inconceivable as to alimony pendente lite, and after the lapse of nearly 5 years and the death of the wife.

The defendant is an educated man. After abandoning his wife for another woman, as the sworn complaint avers (to which he did not attempt to file answer during her life), he was a professor at Harvard, and during these long years of absence he had knowledge of the actions the settlement of which by his counsel he refused to ratify, and that bis wife in some way bad come into possession of tbe lands be left bere.

Upon tbe nncontradicted affidavits set out in tbe record tbe court should bave found tbat tbe defendant did bave notice of tbe institution and pendency of said action. While we cannot find tbe facts, we must bold upon this record tbat there was no evidence justifying tbe finding tbat tbe defendant bad no notice of tbe pendency of tbe suit, and tbe proceedings being regular upon their face in all respects, such finding is reversed. Marsh v. Griffin, 123 N. C., 669; Ricaud v. Alderman, 132 N. C., 64. Tbe affidavit of tbe defendant tbat be did not bave notice of tbe judgment till recently is very far from denying knowledge of tbe pending actions in ample time to make defense, as appears from tbe affidavit of M. L. Wilson as to tbe settlement in writing of tbe matter in controversy with defendant’s counsel and defendant’s letter to Gouge as to tbe wife’s possession of tbe property, which show tbat be bad full opportunity to make bis defense.

Rev., 1566, authorized tbe allowance of support and alimony to tbe deserted wife, and gives to tbe court ample power to declare tbe same a lien on tbe land of tbe defendant, described in tbe complaint, and order tbe sale of tbe land to pay it. Bailey v. Bailey, 127 N. C., 474. Tbe proviso in tbat section provides tbat “If tbe husband shall bave abandoned bis wife and left tbe State, ... no notice shall be necessary,” of tbe application for alimony pendente lite.

“Tbe purpose of this enactment is to afford tbe wife present pecuniary relief pending tbe progress of action.” Moore v. Moore, 130 N. C., 334; Morris v. Morris, 89 N. C., 111. Application for alimony pendente lite may be made by motion in tbe cause. Zimmerman v. Zimmerman, 113 N. C., 432; Reeves v. Reeves, 82 N. C., 348.

In Zimmerman v. Zimmerman, supra, it is said: “Tbe requirement tbat tbe judge shall find such allegations of tbe complaint to be true as will entitle plaintiff to ordér applies only where such allegations are controverted.” In this case, it appeared tbat tbe defendant was absent from tbe State, and could not be found, both tbe order of Judge Long and in tbe judgment of tbe clerk ordering publication upon tbat finding. Tbe judgment of Judge Long at July Term, 1914, decreeing alimony recites tbat tbe “defendant bad been served by publication in tbe action for divorce, and also for alimony, at April Term, 1914, of tbe Superior Court of Mitchell; tbat a motion bad been made by plaintiff at said term, and bad been continued, and it appearing further to tbe court tbat tbe plaintiff bad not received any support from tbe defendant since January, 1913,” it was “adjudged by tbe court tbat tbe plaintiff be allowed 'the sum of $500 as alimony pending this action up to November Term, 1914, of this court, and tbe same is hereby constituted a lien on all property of tbe defendant in Mitchell County, as set out and described in tbe complaint.”

In Bailey v. Bailey, 127 N. C., 474, it is beld: “Land of a busband wbo is out of tbe State may be charged witb alimony pendente lite, and attorneys’fees.” In Sparks v. Sparks, 69 N. C., 319, it is said: “Upon tbe wife making out a prima facie case sbe is entitled to alimony pendente lite.” Tbe orders in tbis case adjudge tbat sbe was unable to give bond, and sbe was allowed to sue in forma pauperis, and tbe judgment recites tbat ber busband bad given ber no support since January, 1913, wbicb facts are beld to be sufficient to justify such order. Miller v. Miller, 75 N. C., 70. If tbe findings of fact in tbe judgment bad been not full enough tbe order would not have been void, but simply beld erroneous on appeal. Moody v. Moody, 118 N. C., 926.

No notice other than by publication, nor any attachment was necessary in either of these cases. Rev., 442, provides tbat service by publication is sufficient when, as here, “Tbe person on whom tbe service of summons is to be made cannot, after due diligence, be found within tbe State, and tbe fact appears by affidavit to tbe satisfaction of tbe court, or to a judge thereof, and in like manner it appears tbat a cause of action exists against tbe defendant in respect to whom service is to be made, or tbat be is a proper party to an action relating to real property in tbis State, such court or judge may grant an order tbat tbe service be made by publication of a notice in either of tbe following cases: ... 5. Where tbe action is for divorce.”

Subsec. 4 of said sec. 442 provides tbat such service by publication may be made “Where tbe subject of tbe action is real or personal property in tbis State, and tbe defendant has, or claims a lien or interest, actual or contingent, therein, or tbe relief demanded consists wholly or partly in excluding tbe defendant from any lien or interest therein.” Tbis applies to tbe action to declare tbe defendant trustee for bis wife as to tbe tract bought witb ber money. Hoke, J., Vicie v. Flournoy, 147 N. C., 213; Graham v. O’Bryan, 120 N. C., 463.

In Bernhardt v. Brown, 118 N. C., 705, tbe Court said: “Proceedings in divorce are sui generis as tbe judgment therein merely declares a personal status, and publication of tbe summons is allowed without tbe acquisition of jurisdiction by attachment of property, tbe court having jurisdiction of tbe person of tbe plaintiff.” Tbis is a well settled principle of law, and tbat case has been often cited since witb approval. See Anno. Ed. . In such cases an attachment is not necessary to complete tbe service of summons, but at option of plaintiff there may be an attachment “to secure tbe property so tbat it may be beld to satisfy tbe judgment when rendered, and also as a basis for tbe publication of tbe summons. Tbe wife always has a remedy of gar-nisbeeing tbe salary or wages of ber husband in sueb cases, and sbe is entitled to an attacbment of tbe property for tbe same reason. Otherwise tbe defendant, pending litigation, can sell or convey bis property, or creditors may attach it for debt or obtain prior liens by judgment.” Walton v. Walton, 178 N. C., 75.

While tbe attacbment in tbe divorce proceeding was not necessary to complete tbe service, it was practically made in this case, by describing-in tbe complaint tbe property sought to be subjected to tbe payment of alimony and tbe recital in tbe judgment that property so described was directed to be sold for payment of tbe judgment.

Tbe defendant, however, relies upon Rev., 449: “Tbe defendant against whom publication was ordered, or who is served under tbe provisions of tbe preceding section, or bis representatives, on application and sufficient cause shown at any time before judgment, must be allowed to defend tbe action; and, except in an action for divorce tbe defendant against whom publication is ordered, or bis representatives, may, in libe manner, upon good cause shown, be allowed to defend after judgment, or at any time within one year after notice thereof, and within 5 years after its rendition, on such terms as may be just; and if tbe defense be successful, and tbe judgment or any part thereof shall have been collected, or otherwise enforced, such restitution may thereupon be compelled as tbe Court may direct, but title to property sold under such judgment to a purchaser in good faith shall not be thereby affected.”

As to tbe divorce proceedings and tbe order made therein allowing alimony, this section does not apply, and tbe proceedings being in all respects regular as above stated, tbe judgment therein rendered cannot be set aside. Besides, tbe title to tbe land was acquired by tbe plaintiff as a bona fide purchaser at tbe sale under execution, and cannot be disturbed. It will be noted, too, that when “good cause is shown” before judgment the defendant must be allowed to defend, but if after judgment, be may (except in divorce actions) be allowed to defend on just terms. Tbe judge in this case imposed no, terms.

As to tbe other action to declare tbe defendant a trustee of another tract of land because purchased by tbe defendant with money of tbe wife, but the husband, without ber knowledge and contrary to their agreement, having taken title to tbe same in bis own name, tbe proceedings were in every respect tbe same as in tbe action in regard to divorce and regular alimony. Service by publication was authorized under Rev., 442, subsec. 4, above set out. Tbe proceedings to set tbe judgment aside were upon tbe same affidavits and findings as to tbe other case. As said in Bernhardt v. Brown, 118 N. C., 705, “Publication is authorized in those cases in which tbe court already has jurisdiction of tbe res, as to enforce some lien or a partition of property in its control or tbe like, and tbe judgment has no personal force, not even for the costs, being limited to acting upon the property.” It is further said, p. 706: “In proceedings under this class — proceedings in rem — it is not necessary; as in proceedings quasi in rem, to acquire jurisdiction by actual seizure or attachment of the property, but It may be done by the mere twinging of the suit in which the claim is sought to be enforced, which in law (in such cases) is equivalent to a seizure, being the open and public exercise of the dominion over it for the purpose of the suit.’ Heidritter v. Oil Co., 112 U. S., 294, and as to this class of cases the statute prescribes publication of the summons whether the defendant is a nonresident or resident, whenever, ‘after due diligence, he cannot be found in the State.’ The Code, sec. 218 (4); Claflin v. Harrison, 108 N. C., 157.”

It is only in proceedings of the third class, quasi in rem, set out in Bernhardt v. Brown, supra, that an attachment is necessary as a basis of publication. In those cases it is not sought to deal with the property in rem because the Court already has jurisdiction of the res, located here, to enforce some lien or right claimed therein nor to enforce a judgment in divorce, but the court proceeds “to acquire jurisdiction by attaching property of a nonresident or of an absconding creditor, and in similar cases.” Bernhardt v. Brown, supra.

The judgment in the second action to declare the defendant a trustee for his wife as to the other tract described in the complaint was regular in all respects. But the motion having been made within 5 years after the judgment rendered, the court below might allow the defendant to defend “upon good cause shown, and upon just terms.” The jury in that ease found upon the testimony the issues as follows:

“1. Were the lands described in the complaint, and all improvements thereon, paid for by plaintiff with her own money? Answer: ‘Yes.’

“2. Were the deeds to said lands taken in the name of the defendant without the knowledge or consent of the plaintiff? Answer: ‘Yes.’’ ”

An examination of the affidavits filed by the defendant shows that he sets out as good cause that he has a “good and meritorious defense.” This is merely his opinion, and was not sufficient to justify' the finding of the judge. An inspection of the affidavit of the defendant shows that he relies upon the allegations that no attachments were issued, and in the divorce case that the facts were not found in the judgment allowing alimony. These were matters of law which the defendant erred in deeming sufficient to set aside the judgment. The judge added a finding, without any evidence to support it, and contrary to the evidence, that the defendant had no notice of the pendency of the action. The only other allegation set out in the defendant’s affidavit as to this case is the following: “This affiant purchased all the real state deeded to him in Mitcbell County, North Carolina, with bis own funds, the plaintiff, Mrs. White, never having furnished a dollar of the purchase money.” His averment in both cases that his wife was crazy is contradicted by the judgment in the record rendered in a trial which he procured and attended, that she was sane.

In view of the fact that the defendant had notice of the pendency of the action, which he might have defended, and which he did attempt to compromise through his counsel and the verdict of the jury, presumably upon sufficient evidence, at July Term, 1914, upon the issues above set out, and the further fact that this motion to set aside such verdict and judgment was not made till 26 March, 1919, nearly 5 years later during which time, as the defendant’s letters show, he knew that'the plaintiff was in possession of the property, we do not think that there was sufficient evidence to justify the findings that good cause was shown, after the death of the wife, who was probably the only person who could have shown that, as the jury found, the land was bought with her money, and the title was taken in her husband’s name, without her knowledge and consent, and the motion should have been .denied.

To sum up:

1. The proceedings in both cases are regular in every respect.

. 2. No attachment in either ease, nor any notice beyond publication, which was made, was necessary, but in fact upon the uncontradieted evidence the defendant did have full knowledge of the pendency of both actions before judgment, and opportunity to defend, and hence he cannot be allowed to defend even under Rev., 449; Turner v. Machine Co., 133 N. C., 385-387.

3. Rev., 449, allowing, on good cause shown, the defendant to defend after judgment does not apply to actions for divorce, and, if it did, it could not require the return of alimony allowed for support of wife pendente lite, and collected.

4. Upon the facts in this ease, there was “no good cause shown” to set aside the verdict, or the judgment in either case, after the lapse of nearly 5 years, the death of the wife and the loss thus of the evidence on which the judgments were rendered.

We think the present owner of the property, the Protestant Episcopal Church, as devisee of Mrs. White, should have been a party defendant.

In both cases, the order setting aside the judgment is

Eeversed.