Opinion
July Term, 1827.
From Burke.
A judgment against a defendant named in the writ, but not made a party either by service, public notice, or attaching his estate, is merely void, and should be disregarded when produced on nul tiel record.
DEBT. The plaintiff declared upon a judgment recovered in Tennessee, and the defendant pleaded "nul tiel record." On the trial before Strange, J., the plaintiff produced a duly certified transcript of proceedings had in Bedford County, in Tennessee, by which it appeared on an affidavit made by the plaintiffs that the defendant had absconded or concealed himself so that process could not be served on him; a writ of attachment issued against his estate, which was levied on a quantity of corn, supposed to be his property, and the levy (188) indorsed on the writ; and an order was made to sell the corn, upon which the officer returned that no money had been made in consequence of older attachments having been previously levied on the same corn. At the succeeding term of the court, the writ being returned with these indorsements, the plaintiffs field their declaration, signed judgment by default, and their damages being assessed by a jury at the next term, a final judgment was entered.
Wilson for the defendant.
On the production of this record, the presiding judge gave judgment for the plaintiffs, and the defendant appealed.
The Constitution and laws of the country guarantee the principle that no freeman shall be divested of a right by the judgment of a court, unless he shall have been made party to the proceedings in which it shall have been obtained. When personal notice cannot be given, it must be dispensed with from necessity, and that must be done which is next most likely to answer the same purpose: public notice must be given, or the defendant's property must be laid hold of. The latter mode was directed and attempted to be adopted in the present case, and had it succeeded the plaintiff would have been authorized to proceed to judgment, because the property when levied upon represented its owner, and of course was liable to that judgment. But no property of the defendant was levied upon; his right to the corn was divested by older process, and judgment was obtained against him when he was not made party to the proceedings in any way known to the law.
I cannot, therefore, consider it a sufficient and legal foundation for the judgment rendered in this case. I am consequently of opinion that the rule for a new trial should (189) be made absolute.
PER CURIAM. Judgment reversed and new trial awarded.
Approved: Skinner v. Moore, 19 N.C. 138; Burke v. Elliott, 26 N.C. 355; Deaver v. Keith, 27 N.C. 374; Stallings v. Gully, 48 N.C. 344; Perry v. Mendenhall, 57 N.C. 157; In re Ambrose, 61 N.C. 91; McKee v. Angel, 90 N.C. 60; Spillman v. Williams, 91 N.C. 483; Stancil v. Gay, 92 N.C. 462; Welfare v. Welfare, 108 N.C. 275; Stafford v. Gallops, 123 N.C. 22; Morris v. House, 125 N.C. 564; Seaman v. Seaman, 129 N.C. 295.