{
  "id": 11269986,
  "name": "NATHAN SIMMONS v. THE DEFIANCE BOX COMPANY",
  "name_abbreviation": "Simmons v. Defiance Box Co.",
  "decision_date": "1908-09-23",
  "docket_number": "",
  "first_page": "344",
  "last_page": "346",
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      "cite": "148 N.C. 344"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "144 N. C., 637",
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      "reporter": "N.C.",
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  "last_updated": "2023-07-14T19:55:17.237307+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "NATHAN SIMMONS v. THE DEFIANCE BOX COMPANY."
    ],
    "opinions": [
      {
        "text": "OijARK, C. J.\nMotion to set aside a judgment. The court found as facts: \u201cThe summons issued 27 April, 1907. It was .read and a copy delivered to S. D. Mesic, at defendant\u2019s mill, 4 May,' 1907. At that time L. M. Baltes was superintendent and manager of said mill, and Mesic was employed as foreman of the mill, employing and discharging hands under the instruction of the superintendent; he was not an officer of the company, (unless the above facts make him such) and had no authority to pay out and receive money on behalf of the defendant. After the officer* left, Mesic handed the summons to Baltes, the superintendent, who was advised by counsel that there had been no legal service, and no attention was paid to the action. At October Term, 1907, judgment by default and inquiry was taken. At November Term tbe inquiry was executed, and judgment final was entered on tbe verdict. At February Term, 1908, motion was made to set aside tbe judgment, on tbe ground that there bad been no legal service of tbe summons upon tbe defendant company.\u201d\nTbe plaintiff moved to dismiss tbe motion, on tbe ground that the remedy was by civil action. Tbe motion to dismiss was properly denied. When it is sought to set aside a judgment for fraud, that must be done by an independent action, because it depends upon extraneous facts, which tbe parties are entitled to bave\u00bbfonnd by a jury. Tbe judgment is not void for fraud, but voidable. On tbe face of tbe record it is regular. But when it is sought to set aside a judgment for irregularity, in that there has been no service of siunmons, it is for tbe court to find tbe facts and correct tbe record to .speak tbe truth, and if in fact there was no service of summons or appearance by tbe defendant (which would waive service of summons), tbe judgment is void. Smathers v. Sprouse, 144 N. C., 637, and cases there cited. Tbe words used in that case, \u201cdirect proceeding,\u201d do not mean \u201can independent action.\u201d A motion in tbe cause, when appropriate, is a direct proceeding. In tbe well-known case of Harrison v. Harrison, 106 N. C., 282, it was held that when there was no service of process tbe judgment could be set aside by motion in tbe cause.\n\u201cWhere it appears from the record that a person was a party to an action, when in fact he was not, tbe legal presumption that be was a party is conclusive .until removed by a correction of the record itself, by a direct proceeding for that purpose.\u201d Sumner v. Sessoms, 94 N. C., 377. This means by motion in tbe cause,- for tbe court corrects the record to speak tbe truth. To same purport, Doyle v. Brown, 72 N. C., 393, where it is said: \u201cWhere tbe summons was not served on defendant and be did not enter an appearance nor have any knowledge of the action until after default judgment, the judgment is void and will be set aside, on motion.\u201d In Flowers v. King, 145 N. C., 234, the summons had been served upon another man, who had the same name, and the Court said: \u201cA party in such case is not allowed to seek redress from the action of one court through the conflicting action of another court or in a different and distinct proceeding in the same court.\u201d\nIlis Honor also correctly held that the \u201cforeman, acting\u2019 under the directions of the superintendent,\u201d is neither \u201can officer\u201d nor \u201ca managing or local agent\u201d of the company, and hence is not a person upon whom service of summons upon the company could be made. If this were not so, service could be made on the boss spinner or boss weaver of a cotton factory, or the foreman of the round house, or any other foreman of a railroad, acting under orders of a superintendent who is present.\nAffirmed.",
        "type": "majority",
        "author": "OijARK, C. J."
      }
    ],
    "attorneys": [
      "17. D. Mclver and B. A. Nunn for plaintiff.",
      "H. L. Gibbs and Simmons, Ward & Allen for defendant."
    ],
    "corrections": "",
    "head_matter": "NATHAN SIMMONS v. THE DEFIANCE BOX COMPANY.\n(Filed 23 September, 1908.)\n1. Summons \u2014 Judgment\u2014Improper Service \u2014 Motion in the Cause.\n' A motion to set aside a judgment for lack of service is the proper procedure, and it is for the court to find the facts and correct the record to speak the truth. If as a fact there was no proper service or appearance, the judgment is void.\n2. Procedure \u2014 Motion in the Cause \u2014 Direct Proceedings.\nA motion in the cause, when appropriate, is \u00e1 direct proceeding.\n3. Corporation \u2014 Summons\u2014Service\u2014Foreman\u2014Proper. Officer.\nService of summons on a foreman of a corporation, who acts under orders of a superintendent who is present at the time, is not upon a person on whom valid service for a corporation can be made.\nMotioN by defendant to set aside judgment for want of service, beard by 17. B. -Allen, J., at February Term, 1908, of Cea ven.\nMotion denied. Plaintiff appealed.\n17. D. Mclver and B. A. Nunn for plaintiff.\nH. L. Gibbs and Simmons, Ward & Allen for defendant."
  },
  "file_name": "0344-01",
  "first_page_order": 374,
  "last_page_order": 376
}