Gillikin Ex Rel. Gillikin v. Gillikin

113 S.E.2d 38 (1960) 252 N.C. 1

Clyde O'Neal GILLIKIN, by his next friend, Lola Gillikin,
v.
Richard GILLIKIN.

No. 92.

Supreme Court of North Carolina.

February 24, 1960.

Jones, Reed & Griffin, Kinston, for plaintiff.

Claude R. Wheatly, Jr., Beaufort, R. E. Whitehurst and David S. Henderson, New Bern, for defendant.

DENNY, Justice.

On the former appeal, Bobbitt, J., speaking for the Court, said: "The judgment of January 27, 1955, purports to confer authority for the proposed settlement. But, until it is first established that a compromise and settlement has been consummated in accordance with the provisions of the judgment of January 27, 1955, we do not reach questions relating to the validity of the judgment or to the legal procedure by which it may be attacked.

"It follows that the judgment, standing alone, whatever its validity and however it may be attacked, does not constitute an estoppel. To establish his plea in bar, defendant must show a legally authorized and consummated compromise and settlement. Defendant's plea in bar, whether considered as a plea of estoppel by compromise and settlement, Winkler v. Appalachian Amusement Co., 238 N.C. 589, 598, 79 S.E.2d 185, or as a plea of res judicata, Reid v. Holden, 242 N.C. 408, 411, 88 S.E.2d 125, or a combination of both, is an affirmative defense. Hence, it is incumbent upon defendant to establish all facts necessary to support such plea." [248 N.C. 710, 104 S.E.2d, 863.]

The evidence adduced in the hearing below was sufficient to sustain the findings of the court, and the findings are sufficient to support the judgment to the effect that there was a compromise and settlement of the matters in controversy growing out of the automobile accident involved, and that such compromise and settlement was consummated by the payment of $7,000 into the office of the Clerk of the Superior Court of Carteret County by the insurance carrier of the defendant, all in accordance with the judgment entered on 27 January 1955.

As we interpret the record, the only additional question to be determined is whether or not the judgment entered on 27 January 1955, authorized such settlement.

The ex parte proceeding was brought pursuant to the provisions of G.S. § 1-400, and the petition filed therein by the attorney for Clyde O'Neal Gillikin and his next friend, Lola Gillikin, set out the facts with respect to the alleged injuries, the doubtfulness of the ability of Clyde O'Neal Gillikin to recover from Richard Gillikin in an action, and further set out that the insurance carrier of Richard Gillikin, the defendant in the action now on appeal, had offered the sum of $7,000 in full settlement of any and all claims arising out of the automobile collision.

The Clerk of the Superior Court of Carteret County, in a hearing on 27 January 1955, after hearing the testimony of the attending physician of Clyde O'Neal Gillikin, and with the approval of counsel for Clyde O'Neal Gillikin and his next friend, found as a fact that the interest of the minor, Clyde O'Neal Gillikin, would be promoted by authorizing the proposed compromise and settlement and entered judgment accordingly, and the settlement was approved by the Resident Judge of the District as provided in G.S. § 1-402.

There is evidence sufficient to establish the fact that Clyde O'Neal Gillikin and his next friend knew and approved of the proposed compromise and settlement. Of course, the minor could not be bound thereby except in a manner provided by law. It is not necessary, however, for such minor to know that an action or special proceeding is brought in his behalf. Credle v. Baugham, 152 N.C. 18, 67 S.E. 46, 136 Am. St. Rep. 787; Tate v. Mott, 96 N.C. 19, 2 S.E. 176.

In the last cited case, Samuel J. Doughit, a citizen and resident of South Carolina, was appointed guardian in that State of certain minor children of William S. Tate. Tate had died intestate in Iredell County, North Carolina. The widow, after the death of her husband, took said children to South Carolina to live. The guardian came to North Carolina and instituted an ex parte proceeding to sell certain lands in which his wards had an interest. He had no right, as a South Carolina guardian, to institute the proceeding in North Carolina, but should have applied to the court for appointment as next friend. This he did not do. Later, it was contended that the judgment under which the land was sold was void. This Court said: "The infants appeared by a person undertaking to represent and acting for them, not altogether officiously, but who had not been appointed by the court for that purpose. He did irregularly what was necessary and proper to be done by a next friend. It must be so taken, because, as we have said, the court recognized him as serving a proper purpose, (that of a next friend,) and acted upon the appearance of the infants by him. Otherwise it would not have granted the prayer of the petition. White v. Albertson, supra (14 N.C. 241). It was essential that there should be an appearance by a next friend, who ought to have been regularly appointed; but as one appeared in fact, and the court so treated him, that was sufficient for the purpose of acquiring complete jurisdiction. So far as appears from the record, the infants appeared advisedly in court in their own special proceeding, and obtained relief for their benefit.

"The court, therefore, erred in deciding that the proceeding in question, including the orders, judgments, and the sale of the land complained of, were void. They were not void, and nothing is alleged or proven, that would warrant the court in setting them aside." [96 N.C. 19, 2 S.E. 179-180.]

The petition in the ex parte proceeding pleaded as a bar to this action, was not verified due to the illness of the next friend. Even so, it was not necessary for it to be so verified.

In the case of Lindsay v. Beaman, 128 N.C. 189, 38 S.E. 811, which involved an ex parte proceeding for the partition of land, the petition was not verified, and this Court said: "We know of no statute which requires the petition in a special proceeding to be verified." The judgment, however, had not been approved by the judge. The Court said: "As to the infant petitioner, it is invalid only in so far as it may be prejudicial to her interest. Code, § 286 (now G.S. § 1-402). It is good so long as it remains unchallenged, which she may do by motion in the cause, and, for proper cause shown, have it set aside." (Emphasis added.)

In the case of Tyson v. Belcher, 102 N.C. 112, 9 S.E. 634, 635, there was an ex parte proceeding to sell certain land. The land was sold in accordance with the judgment entered in the special proceeding and approved by the Judge. In an action attacking the proceeding, on the trial, the defendant offered in evidence a transcript of the record of the ex parte proceeding. The plaintiff objected and excepted to its admission on the ground that such record was void on its face for irregularities, and because the order of sale therein set forth, and the sale of the land in pursuance of it, were contrary to the provisions of the will devising said land. The Court, in approving the admission in evidence of the transcript of the record of the ex parte proceeding, among other things, said: "From an examination of the transcript of the record of the ex parte special proceeding, objected to as evidence, it appears that the court could properly have, and did take in an orderly way, jursidiction of the parties to, and the subject-matter of, the proceeding. The petitioners were represented by counsel, and the petition was filed as allowed by the statute * * * (The Code, sec. 286). If there were irregularities at all in the course of the proceeding, they certainly were not such as rendered it, or the orders and judgment therein entered, absolutely void; at most they were only voidable, and could not, therefore, be attacked collaterally. In such case the remedy would be by a proper motion in the proceeding itself. If it were affected by fraud, then * * * the remedy would be by an independent action for the purpose of having the judgment, or the whole proceeding, accordingly as the case might be, adjudged void for fraud." Coffin v. Cook, 106 N.C. 376, 11 S.E. 371; Rackley v. Roberts, 147 N.C. 201, 60 S.E. 975.

This Court, in Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259, 260, quoted with approval from the case of Sheldon's Lessee v. Newton, 3 Ohio St. 494, 498, the following: "If the court had jurisdiction of the subject-matter, and the parties, it is altogether immaterial how grossly irregular, or manifestly erroneous, its proceedings may have been; its final order cannot be regarded as a nullity, and cannot, therefore, be collaterally impeached."

No fraud is alleged in connection with the ex parte proceeding brought for the purpose of obtaining the approval of the court of the compromise and settlement for the injuries involved in this case. The petitioner and his next friend were represented by able counsel. "A judgment for or against an infant, when he appears by attorney and without guardian or next friend, is not void. It is only voidable * * *." Tate v. Mott, supra. Therefore, any irregularities in the ex parte proceeding under consideration were not sufficient to make the judgment entered therein void. At most, it could be no more than voidable and, therefore, binding until set aside by motion in the cause and is not subject to collateral attack. Tyson v. Belcher, supra. Moreover, nothing appears in this record that would justify the setting aside of the judgment for irregularities or otherwise. Tate v. Mott, supra.

The plaintiff sets out 24 assignments of error purporting to preserve 226 exceptions, and these assignments of error cover more than 22 pages of the record. We have carefully examined these exceptions and assignments of error but have not attempted to discuss them seriatim. In our opinion, however, they present no prejudicial error that would justify a modification or reversal of the judgment entered below.

Affirmed