County of Johnston v. Ellis , 226 N.C. 268 ( 1946 )

Seawell, J.

On tbe facts of record tbe judgment of tbe court below bolding valid and binding upon tbe appellants tbe judgment and commissioner’s deed in tbe mortgage foreclosure proceeding cannot be sustained. Tbe judgment is based on tbe theory that tbe foreclosure judgment attacked by tbe appellants, if defective at all, was at most merely irregular, and that tbe movents bad shown no meritorious defense in their application to vacate it. We have tbe impression, however, that tbe defects of wbicb appellants complain go to tbe jurisdiction: (a) Want of jurisdiction in tbe court to entertain tbe mortgage foreclosure proceeding within tbe frame of tbe tax suit, either while tbe latter was pending or after that controversy bad ended; (b) want of legal representation of tbe minor children of J. E. Ellis, equitable owners of tbe land, when tbe foreclosure judgment was taken, or during any part of that proceeding; and (e) want of jurisdiction on tbe part of tbe clerk to render a default judgment upon tbe “interplea” or affidavits, documents and other evidence made tbe basis for tbe judgment for debt, and to adjudge the incidental foreclosure of tbe mortgage securing it.

Appellants’ first objection applies to tbe court as one of general jurisdiction without reference to tbe limited jurisdiction of tbe clerk discussed infra. Tbe appellants contend that tbe court bad no inherent power to bring into an existing suit an independent cause of action, unrelated in any way to that stated in tbe complaint or to tbe relief sought in tbe original action, unnecessary to its investigation and determination, and raising issues only between defendants or parties called in adversely to answer or defend rights wbicb might be affected by tbe original suit; or, in other words, to entertain a separate controversy exclusively between tbe defendants wbicb, however justifiable in an independent action, bad nothing to do with tbe plaintiff or its cause of action; in tbe case at bar, a mortgage foreclosure proceeding between parties called in to protect tbeir rights, if any, against the county’s claim for taxes.

Objection to the power of the trial court to entertain the mortgage foreclosure suit within its already occupied jurisdiction in the tax suit must, under the facts of this case, be regarded as meritorious. The new cause of action has no relation to that to which the jurisdiction of the court had attached, nor was it necessary to its judicial determination; it was a mere episode between codefendants. Schnepp v. Richardson, 222 N. C., 228, 22 S. E. (2d), 555; Wingler v. Miller, 221 N. C., 137, 19 S. E. (2d), 247; Clendenin v. Turner, 96 N. C., 416, 2 S. E., 51; Richards v. Smith, 98 N. C., 509, 4 S. E., 625. Most of the cited cases were normal in incident, and the question was presented upon demurrer. Won constat that without demurrer, departure from the course of the court may not, under given circumstances, be so great or so grave as to constitute a fatal defect in jurisdiction. The court cannot by mere tolerance create within itself a jurisdiction which it has not orderly acquired. The familiar principle that parties, by common consent, may submit to the court a cause of action of which it has jurisdiction and which is properly pleaded has no application here. The following circumstances attending the progress of the case at bar deprives the situation before us of such plausibility: In the instant case there was no consent asked or given for the radical change in subject and parties which demanded the attention of the court and partnership with the tax suit in its jurisdiction. There was no amendment to the original complaint or any order respecting the new and independent cause of action outside of the inferential recognition it may have received in the judgments to which? exception has been taken. There was no notice given to any interested person of this unpredictable development, although it occurred out of term; and there was no legal duty resting upon any interested party to take notice of any proceeding which might reconstitute the case or justify the presence of appellants therein in their new role. McIntosh, Civil Procedure, sec. 493. The question is whether the attempted admission of the would-be litigant and his independent cause of action into the already occupied forum, thus entertaining two separate lawsuits at the same time, and within the same procedural frame, did not over-saturate the jurisdiction of the court and result in a void judgment. "Without further elaboration and confining our observation to the facts of the case at bar, we are of opinion that the judgment under review was so contrary to the course of the court as to render- it invalid.

The record might be construed as indicating that the controversy over the delinquent tax had ended with the judgment setting aside all former orders and canceling the commissioner’s deed before the mortgage proceeding got under way, since the tax had been paid and the purchaser at the tax sale elected to recover it from these petitioners rather than from the County of Johnston. In that event, the plight of appellants would be no better because of a want of anything having the semblance of a pleading on their part, and the lack of representation of the minors in that anomalous proceeding.

To sustain the validity of the foreclosure judgment, appellees rely upon representation of the minors by their next friend, Joe Ellis, to bring them into court, and upon his express consent or the consent implied through some failure on his part to perform a duty of defense imposed upon him by law. The Court is of the opinion that Ellis as next friend could give no consent, and that no implication arises of a consent which he was not capable of giving. Even if his powers and duties as next friend had been comparable to those of a guardian ad litem, —which they were not — he would have had no power to consent to a judgment of this kind without special authority of the court; Butler v. Winston, 223 N. C., 421, 425, 27 S. E. (2d), 124; and the judgment would have been invalid without it; but his office as next friend of his minor suitors did not extend to their general defense. There is, we are aware, a lack of uniformity in judicial decision in the several jurisdictions respecting the duties and authority of a next friend and the extent of his representation. These differences are largely due to the variation in pertinent statutes of the particular jurisdiction. We think it essential to orderly procedure, and to the better protection of the rights of infants' and others non sui juris, to adhere to the distinctions between next friends and guardians ad litem or general guardians traditional in our practice and formally recognized and implied in our statutes: G. S., 1-64; G. S., 1-65 to 1-67. McIntosh, Civil Procedure, p$. 237-238, sees. 253-254. These distinctions stem mainly from the circumstance that a next friend is appointed to bring or prosecute some proceeding in which the infant suitor is plaintiff, or at least where some right is positively asserted; while a guardian ad litem is appointed to defend. In legal effect, the distinctions are substantial and not merely formal.

A next friend is not an all-time and all-purpose representative through whose action or failure to act his infant suitors may be bound by orders and judgments which have no connection with the purpose of his appointment, or the rights of the minors which by virtue of such appointment it is his office to assert. The scope of his representation lies within and is determined by that purpose, the necessities of its prosecution and the procedure reasonably incident thereto. In 27 Am. Jur., p. 839, sec. 118, is a summarized expression of the law as we conceive it to be here: “The next friend has full power to act for the purpose of securing the infant’s rights, and may do all things that are necessary to this end, although his power is strictly limited to the performance of the precise duty imposed upon him by law.” Roberts v. Vaughn, 142 Tenn., 316, 219 S. W., 1034, 9 A. L. R., 1528. No doubt in the assertion of such right the next friend may have to defend against incidental or opposing rights, such as offsets, counterclaims, or other defenses or demands connected with the original claim.

The next friend came into the tax suit for the purpose of making a motion to set aside a judgment and annulling a deed in the tax suit, in which the minors were admittedly equitable owners of the property and at the time unrepresented. His appointment did not require him to defend against the foreclosure suit thrust into this proceeding in the manner stated, and his representation of the minors in that matter did not legally exist.

Moreover, the record discloses that Ellis had successfully accomplished his mission as next friend, performed all the duty imposed upon him by law, and his office as next friend had become functus officio. If the holder of the mortgage desired to foreclose, it was necessary to do so in an orderly proceeding, instituted for that purpose, and to secure the appointment of a guardian ad litem to defend the owners of the equitable estate. The judgment based on the representation and participation of Ellis as next friend is not valid or binding upon appellants.

The jurisdiction of the clerk of the Superior Court is statutory and limited, and can be exercised only with strict observance of the statute. Beaufort County v. Bishop, 216 N. C., 211, 4 S. E. (2d), 525. Jurisdiction to order foreclosure of mortgages is given to the clerk by G. S., 1-209 (e), in connection with G. S., 1-211, and is an incidental jurisdiction conditioned upon the rendition by the clerk of a judgment by default for the debt secured by the mortgage in favor of the mortgage creditor and against the mortgage debtor. Under the last statute named, the default judgment can be made only upon a failure to answer a verified pleading where the sum due is “capable of being ascertained therefrom by computation.” The judgment under review is not of that character. Its recitals show that the motion for judgment was heard upon oral and documentary evidence, the exhibition of notes and mortgage and of affidavits in the cause. No authority is given the clerk to render a judgment by default where the title to the mortgage debt and the amount thereof must depend upon evidence taken before him, rather than by default in answering an appropriate pleading. The necessity of taking evidence upon the point is apparent from the record, but it is this very necessity that defeats the jurisdiction of the court.

Appellees have pleaded both laches and a statute of limitation, but lapse of time is unavailing against a motion to set aside a void judgment; Monroe v. Niven, 221 N. C., 362, 365, 20 S. E. (2d), 311.

For the reasons stated, we conclude that the judgment in the foreclosure proceeding sought to be vacated by petitioners is void and of no effect, and the commissioner’s deed made in pursuance thereof is invalid. The judgment of Judge Carr, rendered as of December Term, 1945, except in so far as it relieves these appellants of the debt adjudged against them, is reversed. The scope of our review does not permit us to map out for the parties such remedies as they might have in an appropriate proceeding.

Judgment reversed.