Pulley v. Pulley

121 S.E.2d 876 (1961)

255 N.C. 423

Helen Elizabeth PULLEY v. Charlie Herbert PULLEY.

No. 174.

Supreme Court of North Carolina.

October 11, 1961.

*879 A. Turner Shaw, Jr., Jacksonville, and Ellis, Godwin & Hooper, by Glenn L. Hooper, Jr., Dunn, for plaintiff-appellant.

Jones, Reed & Griffin, Kinston, for defendant-appellee.

PARKER, Justice.

Plaintiff assigns as errors Judge Morris' conclusions and order.

G.S. § 1-247 authorizes the entry of a judgment by confession for alimony, and provides that a wilful failure of the defendant to make payments of alimony, as required by such judgment, shall subject him, upon proper cause shown to the court, to such penalties as may be adjudged by the court as in any other case of contempt of its orders.

G.S. § 1-248 provides: "A statement in writing must be made, signed, and verified by the defendant, to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it is for money due, or to become due, it must state concisely the facts out of which it arose, and must show the sum confessed is justly due, or to become due."

Defendant challenges the validity of his own judgment by confession for the payment of alimony on the grounds set forth above in the statement of facts.

Defendant relies upon Gibbs v. G. H. Weston & Co., 221 N.C. 7, 18 S.E.2d 698, 699, where it is said in reference to a judgment by confession: "The verified statement is jurisdictional both as to its filing and as to its contents. (Citing authority.) Since the proceeding is in derogation of common right, the statute authorizing this form of judgment must be strictly construed." In that opinion the Court further said, which is not quoted in defendant's brief: "The failure to comply with the mandatory terms of the statute and especially the want of rendition of judgment upon the statement and affidavit of the defendant is not a mere irregularity but constitutes a fatal defect rendering the proceeding of no effect as against creditors whose judgments were subsequently docketed." Emphasis ours.

Defendant also relies on Smith v. Smith, 117 N.C. 348, 23 S.E. 270, which was a proceeding by an administrator of the confessing debtor, representing creditors, to set aside a judgment confessed, because the *880 confession does not state sufficiently the consideration of the note and that it was justly due. The Court after setting forth that the statutory requirement is that the confessed judgment must show the consideration, and the amount confessed is justly due and after stating that this is to prevent fraud in such cases, says, "If the statutory requirements are not complied with, the judgment is irregular and void, because of a want of jurisdiction in the court to render judgment, which is apparent on the face of the proceedings."

These two cases, and others relied on by defendant, where the challenges are made by creditors, are not controlling in the instant case, because, inter alia, the challenge to the validity of the confessed judgment here comes not from or in behalf of creditors of the confessing debtor, but from the defendant himself.

This Court said in Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673, 676: "* * * it is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel." Citing many authorities.

This Court said in Jones v. Brinson, 238 N.C. 506, 78 S.E.2d 334, 337: "While it is true that no consent can give a court jurisdiction of the subject matter of an action which the court does not possess without such consent, it is equally true that a court may obtain jurisdiction over the person of a party litigant by his consent. This for the reason that it is a mere personal privilege of a defendant to require that he be served with process in a legal manner, and since it is a personal privilegeeven though of a constitutional naturehe may consent to the jurisdiction of the court without exacting performance of the usual legal formalities as to service of process." Citing authorities. See Waters v. McBee, 244 N.C. 540, 94 S.E.2d 640.

21 C.J.S. Courts § 108, says: "Jurisdiction of the subject matter cannot be conferred upon a court by, or be based on, the estoppel of a party to deny that it exists. As to other objections to jurisdiction, there may be an estoppel, as in the case of objections to the manner in which, or the steps by which, the court obtained jurisdiction, or to the venue."

19 Am.Jur., Estoppel, § 77, says: "One who invokes or voluntarily submits to the exercise by a court of its jurisdiction upon a matter of which it has power to take cognizance is estopped from subsequently objecting thereto."

An absolute want of jurisdiction over the subject matter may be taken advantage of at any stage of the proceedings, even after judgment. However, "An objection to jurisdiction based on any ground other than lack of jurisdiction of the subject matter, such as lack of jurisdiction of the person or irregularity in the method by which jurisdiction of the particular case was obtained, is usually waived by failure to raise the objection at the first opportunity, or in due or seasonable time, or within the time prescribed by statute." 21 C.J. S. Courts § 110.

In Martin & Son v. Briscoe, 143 N.C. 353, 55 S.E. 782, there was a motion upon affidavit and notice to revive a dormant judgment, which defendant had confessed in favor of plaintiff. The verification was: "Sworn to and subscribed before me, this 14th of November, 1896. T. C. Smith, C. S. C." Confessing defendant contended that this verification was not sufficient to authorize the entry of judgment by confession, and that such judgment was void for want of jurisdiction. Upon hearing the cause the clerk of the superior court held the judgment invalid and refused to revive it. On appeal to the judge this was reversed, and the defendant appealed. We affirmed the judge. In its opinion the Court with one Justice concurring in the result, and two dissenting, said: "We would not be understood as passing upon the question *881 of the validity of such judgment confessed if it were attacked by a creditor, or even if the defendant had assailed it on the ground of fraud or imposition or denied the debt. We place this decision upon the ground of estoppelthe original affidavit by defendant that the debt was due the plaintiff, his acquiescence in the judgment for six years, his failure in this proceeding to deny the plaintiff's allegation (made under oath) that the debt is still due, the absence of any averment by defendant of fraud, mistake, or imposition, and the fact that if the judgment should be now held invalid, at defendant's instance, for informality, after having been entered at defendant's request, he would be protected by the statute of limitation."

In Johnson v. Alvis, 159 Va. 229, 165 S.E. 489, 490, the Court said: "A defendant confessing judgment is estopped, in the absence of fraud, to question its validity on account of irregularities to which he did not object, or to dispute any facts set forth in the confession, and if, after the entry of the judgment, he ratifies or accepts it, or acquiesces in it, he is estopped to deny the authority on which it was confessed or otherwise to impeach its validity." To the same effect see Sheldon v. Stryker, 34 Barb. 116, 122; Mullin v. Bellis, City Ct., 90 N.Y.S.2d 27; Yonkers Factors, Inc. v. Pugach, 13 A.D.2d 785, 214 N.Y.S.2d 820; Risman v. Krupar, 45 Ohio App. 29, 186 N.E. 830; 49 C.J.S. Judgments § 172.

In Mullin v. Bellis, supra, the defendant made a motion to set aside a judgment entered upon his confession of judgment, and one of his grounds for vacatur was the confession of judgment was signed but not verified, Civil Practice Act, § 541. Cahill-Parsons, N. Y. Civil Practice, contains The New York Civil Practice Act, § 541, which reads in part: "The statement must be verified by the oath of the defendant to the effect that the matters of fact therein set forth are true." The Court said [90 N.Y.S.2d 28]: "In any event, a defendant cannot impeach a judgment which is based upon his signed statement even though it be unverified or unacknowledged." See Los Angeles Adjustment Bureau, Inc. v. Noonan, 181 Cal. App. 2d Supp. 834, 5 West's Cal.Rptr. 445, which quotes from the Mullin case what we have quoted.

The deed of separation states both parties were of Onslow County. Therefore, the superior court of Onslow County had jurisdiction over the subject matter of the proceeding here, the payment of alimony. G.S. § 50-1.

Defendant's confession of judgment is for the payment of specified alimony, which is authorized by G.S. § 1-247, it states he fully realizes his moral and legal obligation to provide adequate support for plaintiff, and that he confesses judgment therefor, stating it "is for an obligation for maintenance and support justly due by" him to her, and authorizes the entry of judgment by the court therefor. He invoked the exercise by the superior court of Onslow County of its undoubted jurisdiction upon a subject matter of which it had power to take cognizance. He made the payments of alimony required by his confessed judgment, and the entry of judgment therefor, from 18 July 1958 through 3 December 1960. On 30 November 1960 he obtained an absolute divorce from plaintiff. If this confessed judgment for alimony, and the entry of judgment therefor, should now be held invalid, at his instance, it would prevent, as he states in his brief, the enforcement by contempt of the payment of alimony to plaintiff by him, which defendant states in his confessed judgment is an obligation justly due by him to her. Davis v. Davis, 213 N.C. 537, 196 S.E. 819. Perhaps, a paraphrase of the aria Captain Macheath sings in Gay's "The Beggar's Opera," XIII, air XXXV, truly expresses defendant's feelings and desires, how happy could I be with my second wife, could I rid myself of the support of my first wife. The sums of alimony to be paid, as stated in the confessed judgment are definitepayments during *882 her life, provided defendant survives her. Defendant makes no suggestion that there was any fraud, mistake or oppression.

The entry of judgment for the payment of alimony by the court, based on defendant's confessed judgment therefor, states plaintiff shall have and recover of defendant the specified payments of alimony, instead of ordering defendant to pay these amounts. This is an infelicitous choice of words and an irregularity, because the court's judgment before this states the defendant has confessed judgment for alimony, and "to that end has authorized the entry of judgment that the defendant pay to the plaintiff" the specified alimony, "an obligation for maintenance and support justly due by the defendant to the plaintiff for her support," and because further this language appears in the deed of separation: "And Whereas, the said husband has agreed to make provision for the support and maintenance of the said wife and to that end has this date confessed judgment before the clerk of the superior court of Onslow County, North Carolina, wherein he acknowledges an obligation to support the said wife and has consented that a judgment be entered against him that he pay to the said wife the sum of Sixty-two Dollars and Fifty Cents ($62.50) on the 3rd and 18th days of each and every succeeding month hereafter."

It is to be understood that we are not passing upon the question of the validity of the confessed judgment, and the entry of judgment thereon, if they were assailed by a creditor, or challenged by defendant on the ground of fraud, mistake, or oppression. We place our decision squarely upon the ground that defendant, under all the facts here, is estopped to question the validity of his own confessed judgment for alimony, and of the entry of judgment therefor by the superior court of Onslow County as authorized by him, and to question that the entry of judgment by the court on the confessed judgment is a court order to pay alimony.

The court below erred in not holding that defendant is estopped to question the validity of his own confessed judgment for alimony, and of the entry of judgment therefor by the court, and to question that the judgment entered by the court on his confessed judgment is an order of court for defendant to pay alimony, and in concluding that they are a mere contract between plaintiff and defendant constituting consent judgments unenforceable by contempt proceedings, and in ordering plaintiff's motion to show cause dismissed. The lower court will issue a show cause order as prayed in plaintiff's motion, and then have a hearing on such order according to law.

The order below is

Reversed.