Commissioners v. . Scales , 171 N.C. 523 ( 1916 )

After stating the case: There was a motion to dismiss the appeal, as no case on appeal had been served by the appellant, but we do not think a case was required, as there is only one exception to the judgment, and that was taken at the trial. There are assignments of error, but they all turn upon the one question, whether the last judgment was a proper one. No case was necessary to present this question, as it is done by the exception, and, even without it, by the appeal from the judgment. Brooksv. Austin, 94 N.C. 222; Wilson v. Lumber Co., 131 N.C. 163; and especially Clark v. Peebles, 120 N.C. 31, and cases collected in Pell's Revisal, vol. 1, sec. 591, at bottom of p. 317 and top of page 318, and Clark's Code (3 Ed.), sec. 550, p. 770. It (526) appears that James J. Bailey has become a party to the action on his own motion and has also asked for relief upon the merits by his motions. He has therefore waived any defect of jurisdiction as to his person. Scott v. Life Assn., 137 N.C. 516; Dell School v. Peirce,163 N.C. 424; S. v. White, 164 N.C. 408. Instead of making and relying upon a motion to dismiss, he first asks the court, in his motion, to set aside the judgment, and then that he be allowed to appear specially and move to dismiss, "because of improper service and irregularities and illegalities." He has, also, at his own request, been allowed by Judge Foushee to plead, and this Judge Long found as a fact. We are of the opinion that he has waived his motion to dismiss for want of proper service of the summons, even if he made it under a special appearance, which may be doubted, as he has become a party to the action. Hassell v. Steamboat Co.,168 N.C. 296. But he may rely upon his motion to set aside the order of sale, the confirmation thereof, and the deed of the commissioner upon any ground not involving the court's jurisdiction of his person, as this right was not, in our opinion, taken from him by the last judgment which was entered at Fall term and signed by Judge Long. By that judgment the one rendered by Judge Foushee was set aside, and the sale, order of confirmation, and deed reinstated.

Three reasons were assigned by the court for rendering this judgment: (1) that James J. Bailey had failed to answer; (2) that C. D. Justice was an innocent purchaser. These two reasons were invalid, because Bailey could not answer at that stage of the proceeding, as the order of sale had not been set aside by Judge Foushee, but only the sale and the deed, and an answer to the complaint would have been of no avail after the court had granted the relief prayed for in it by ordering a sale. As to the second reason, the court had no power to set aside the judgment, even if it though that C. D. Justice was in law an innocent purchaser, because, if Judge Foushee had erred in holding that he was not, and then setting aside the judgment, this was mere error in law, which could be corrected only by an appeal from that judgment. The remedy for correcting an erroneous judgment is not by setting it aside, but by having it reviewed upon an appeal from it. But the third reason assigned for the present judgment, and for vacating the judgment of Judge Foushee, is sound, and justified the action of the court. C. D. Justice was not a party to this action and had no notice of the motion to set aside the judgment rendered by Judge Foushee. It was, therefore, void as to him, and the court did the proper thing in setting it aside.Johnson v. Whilden, ante, 153. But this did not dispose of James J. Bailey's prior motion to set aside the order of sale, and that motion has not been distinctly considered and passed upon. He alleges several irregularities, and is entitled to be heard in regard to them. Among (527) them is that the judgment of the court under which the commissioner sold the land was irregular on its face, as it did not specify the amount due, and the owners of the land could not redeem it from the sale, as they did not know what to pay and no reasonable time was allowed for paying the amount adjudged to be due, which they say is usual and according to the course and practice of the court in such cases. He also alleges that no notice of the intention to bring the suit under the statute was given, and that the sale was confirmed at a term of the court when the motion to set aside the order of sale was pending. This Court may find hereafter that there were irregularities which vitiated the judgment of February Term, 1912, under which the land was sold, and that they are such as will invalidate the title acquired by the purchaser, if he had notice of them, either express or implied; but before we can determine, as matter of law, whether there were any irregularities, and, if so, whether they will affect the title of the purchaser, we must know the facts, and will not, at this stage of the case, express any opinion upon the merits. We merely sustain the order of Judge Long setting aside the order of Judge Foushee for the reason only that C. D. Justice had no notice of the motion before Judge Foushee to vacate the former judgment under which he bought the land, with this modification, that James J. Bailey may now be heard upon his motion to set aside the order of sale, and the sale and deed made thereunder, upon due notice to C. D. Justice, and the last order or judgment is allowed to stand, but subject to James J. Bailey's right to proceed in the cause as indicated. The practice where a motion is made to dismiss for defective service of process is well settled. When such a motion is refused, an appeal does not then lie, but the defendant should note his exception and then answer or demur; but he can't move to dismiss and answer at the same time, for answering or demurring is equivalent to a general appearance. The motion to dismiss should first be passed upon and an exception reserved if the ruling is adverse to him, and this should be done before answering. Clark's Code (3 Ed.), p. 738, sec. 548, and numerous cases there cited. We cannot determine whether C. D. Justice is an innocent purchaser, nor can we decide the other question until all the facts are before us and there have been specific rulings upon them.

The cause is remanded, with directions to proceed further therein as above directed, and to this extent the judgment is modified. The costs will be paid equally by the plaintiff county of Buncombe and the defendant James J. Bailey, as we have sustained the judgment so far as C. D. Justice is now concerned. Notices will be issued, and parties brought in, if necessary, and such further proceedings had as will determine the case finally upon its legal merits.

Modified.

Cited: Bessemer Co. v. Hardware Co., 171 N.C. 729 (1c); Montgomery v.Lewis, 187 N.C. 578 (3p); R. R. v. Cobb, 190 N.C. 376 2d; Winchester v.Brotherhood of Railroad Trainmen, 203 N.C. 743 (1c); Buncombe County v.Penland, 206 N.C. 304 (3c); Privette v. Allen, 227 N.C. 165 (1c).

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