Owens v. Voncannon

RodmaN, J.,

dissenting: Since I am unable to agree with the conclusions reached by my brethren in this case, it is proper that I should briefly explain my reasons for dissenting.

The facts are stated in the opinion of the Court. Movant asserts the answer was filed by an .impertinent intermeddler who had no authority to consent to a judgment. If the attorney who filed the answer was without authority to do so, plaintiffs were entitled to a default judgment. The mere fact that the court, instead of so denominating it, declared it a -consent judgment under’ a mistake of facts, should not defeat plaintiffs’ rights. If the answer was filed by an attorney authorized to answer for movant, he became her agent, and the mere fact, if as movant asserts, that he exceeded his authority does not render the judgment void. The act of an agent in making a contract beyond the authority given him by his principal is voidable, not void. A void contract is an absolute nullity and may be disregarded everywhere. It is not subject to ratification. A voidable contract, e.g., a -contract made by -an infant or incompetent, is .subject to -ratification and is binding if not vacated by affirmative action taken in due time. The distinction is at times, as here, im *357 portant. At other times the distinction is not important and “void” is frequently used when “voidable” would be more 'appropriate. The distinction has been repeatedly recognized in decisions of this Court. See McNeill v. R.R., 135 N.C. 682 ; Millsaps v. Estes, 137 N.C. 535 ; Chandler v. Jones, 172 N.C. 569 , 90 S.E. 580 ; Hogan v. Utter, 175 N.C. 332 , 95 S.E. 565 ; Beeson v. Smith, 149 N.C. 142 ; Barger v. Finance Co., 221 N.C. 64 , 18 S.E. 2d 826 ; Reynolds v. Earley, 241 N.C. 521 , 85 S.E. 2d 904 ; 17 C.J.S., 331; 12 Am. Jur. 507 .

Hall, J., more than a century ago, said in Williams v. Woodhouse, 14 N.C. 257 : “Judgments are the solemn determinations of judges upon subjects submitted to them, and the proceedings are recorded for the purpose of perpetuating them. They are the foundations of legal repose.” Substantially similar definitions have been given by this Court on numerous occasions. Before a judgment can be rendered, a court must have jurisdiction of the parties and the asserted cause of action. If either is lacking, the judgment is void. Where the court has jurisdiction of the parties and causes, it may be irregular — that is voidable, or erroneous. It is erroneous When the court acts upon a mistaken view of the law. It is irregular when entered contrary to the course and practice of the court because of some mistake of fact, as for instance, the capacity of the parties to assent to a contract. The distinction between void, voidable or irregular, and erroneous judgments has been repeatedly pointed out. Carter v. Rountree, 109 N.C. 29 ; Finger v. Smith, 191 N.C. 818 , 133 S.E. 186 .

If, as movant asserts, the attorney who filed the original answer was a mere officious intermeddler without authority to answer, the court had the power to render a default judgment. The fact that, instead of so denominating it, it is named a consent judgment, should not, standing alone, suffice to impair its validity. If the attorney was authorized to answer but not authorized to consent, the judgment was voidable because entered under mistake of fact. In either event, a meritorious defense ought to be shown as a condition to vacating the judgment. It is said in Freeman on Judgments, 5th ed., vol. 3, p. 2762: “In support of an application to open a judgment there must be a sufficient showing by affidavit or other appropriate method, of a meritorious defense, unless the judgment is wholly void for lack of jurisdiction.”

Hoke, J., later C. J., said in Gough v. Bell, 180 N.C. 268 , 104 S.E. 535 : “. . . it has been held with us in numerous decisions that, in order to (obtain) such relief in case of judgments voidable for irregularity it is incumbent on defendant that he should move with *358 reasonable promptness and make a reasonably probable show of merits.” (Emphasis supplied.)

The eases in our reports requiring showing of merit to vacate judgment rendered under a misapprehension of fact are multitudinous. The following are illustrative: Jeffries v. Aaron, 120 N.C. 167 ; LeDuc v. Slocomb, 124 N.C. 347 ; Stockton v. Mining Co., 144 N.C. 595 ; Minton v. Hughes, 158 N.C. 587 , 73 S.E. 810 ; Miller v. Curl, 162 N.C. 1 , 77 S.E. 952 ; Hyatt v. Clark, 169 N.C. 178 , 85 S.E. 389 ; Chemical Co. v. Bass, 175 N.C. 426 , 95 S.E. 766 ; Cahoon v. Brinkley, 176 N.C. 5 , 96 S.E. 650 . The rule requiring a meritorious defense as condition for vacating a judgment rendered by mistake is but 'an illustration of the rule so frequently applied that harmless error is not sufficient to destroy a judgment.

I recognize that it was said in Town of Bath v. Norman, 226 N.C. 502 , 39 S.E. 2d 363 , that a consent judgment was void in the absence of consent and hence a meritorious defense was not necessary. Without questioning the correctness- of the ultimate result of that case, I do not think it is predicated on a sound foundation, namely that meritorious defense is not necessary where the judgment is voidable rather than void.

In the 'companion case of Brown v. Owens, we hold that plaintiff has no meritorious defense. Why then should the time of the Superior Court, bo badly needed for the trial of other cases, be taken to hear -a cause when, the ultimate result will not vary from the judgment which has been rendered? Plaintiffs are entitled to the judgment. They should not be deprived of their rights- nor should the court be toyed with.