State ex rel. Hanson v. Yandle, 235 N.C. 532, 70 S.E.2d 565 (N.C., 1952)
STATE ex rel. HANSON et al.
YANDLE et al.
Supreme Court of North Carolina.
May 7, 1952
J. F. Flowers, Charlotte, for appellant Massachusetts Bonding & Insurance Co.
Harry McMullan, Atty. Gen., and Raymond C. Maxwell, Sp. Asst. to Atty. Gen., for appellee University of North Carolina.
Taliaferro, Clarkson & Grier and William E. Poe, all of Charlotte, for appellee Mecklenburg County.
This appeal poses for decision only one question, to wit: Was the Superior Court judge vested with authority to enter the adjudication contained in paragraph (19) of the final judgment herein entered 15 September 1936?
If the court was without authority, its judgment as contained in said paragraph is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, Clark v. Homes, 189 N.C. 703, 128 S.E. 20, Boone v. Sparrow, N.C., 70 S.E.2d 204, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea. Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311; McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27; High v. Pearce, 220 N.C. 266, 17 S.E.2d 108; McCune v. Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219; Boone v. Sparrow, supra.
So then, there is no question but that the respondents may assail paragraph (19) of the final judgment herein as a nullity for want of jurisdiction of the judge to grant the relief therein attempted.
[235 N.C. 536] The contention is advanced that the final judgment is a consent judgment. It does recite a proposed settlement and the consent of the respondent University. Even so, on the question here presented, it is immaterial whether it was or was not entered by consent. If the court was without jurisdiction of the subject matter in the first instance, the consent of the parties adds nothing to the force and effect of the judgment, for jurisdiction of the subject matter cannot be conferred by consent of the parties. McRary v. McRary, supra; Reaves v. Mill Co., 216 N.C. 462, 5 S.E.2d 305; High v. Pearce, supra; McCune v. Manufacturing Co., supra. The provision must stand or fall on the authority or want of authority of the judge to insert it as a part of the final judgment.
On this question the respondents contend the adjudication constitutes an attempt on the part of the court to enter an anticipatory judgment settling rights that might accrue at some time in the future upon a state of facts which had not arisen
when the judgment was entered and might never arise in the future. If their premise is sound, their conclusion that the judgment is void is well founded and must be sustained.
On the other hand, the appellant Bonding Company contends that the subject matter under consideration was the settlement of its liability as surety upon the performance bonds of the former clerk and the question immediately at issue was the amount to be paid by it in settlement of its liability and the conditions upon which it should pay the sum agreed into the office of the clerk of the Superior Court. The judgment fixed the amount to be paid and paragraph (19) decreed the conditions upon which it was to be paid. These were matters clearly within the jurisdiction of the court. So it asserts.
We are constrained to concur in the view of the appellant. While the record is not entirely clear on that point, it seems the court allowed all claims as they appeared on the books and records of the former clerk (including claims not filed with the receiver) except such as were expressly rejected or denied by the judgment entered. It is a matter of common knowledge, at least among lawyers and judges, that many small amounts of money from various sources come into the hands of the clerks of the Superior Court for the use of various and sundry persons who never appear and claim what is theirs. The Bonding Company was willing to pay into the office of the clerk of the court a sum sufficient to meet the liability of its principal for the payment of the several amounts which might in fact be claimed by those for whose use and benefit they were held. It was unwilling to pay any amount which would eventually escheat to the University or revert to the school fund. The receiver was unwilling to agree to the deposit of any amount less than that required to discharge the liabilities of the former clerk as disclosed by his records. [235 N.C. 537] It is apparent this was the situation which faced the parties as they sought a basis of settlement satisfactory to all.
The problem could have been solved by the adoption of any one of several plans. For instance, the money could have been deposited in escrow to be withdrawn as and when claimants actually appeared and demanded the amounts due them, or it could have been stipulated that the Bonding Company should pay claims as and when they were duly approved by the receiver or the clerk. The plan adopted was the simplest and most direct approach to the settlement of the problem presented.
The court recognized the merit of the contention of the Bonding Company in respect to the payment of amounts which might never be claimed by those to whom they were due. At the same time it deemed it imperative that all claimants who might appear and claim funds held to their use by the clerk should be protected, on a basis of equality, within the limits of the total amount agreed to be paid. It should not be a case of first come, first served, and the devil take the hindermost. It therefore required the payment of the total sum agreed upon but attached to the payment the conditions set forth in paragraph (19). This constituted a payment on condition. In effect, it was a payment in escrow, the successor clerk being the depositee with instructions to expend the fund in the payment of such of the judgment creditors in whose favor judgments were entered against the former clerk and his surety as might appear and claim the several amounts adjudged to be due them, and then to return the balance, if any, to the defendant bonding company, depositor.
We are unable to perceive any reason why this was not permissible and well within the authority of the trial judge. The liability of the bonding company was the primary subject matter of the action instituted by the receiver against the former clerk and his surety. It cannot be gainsaid that the judge had the power to authorize and approve a compromise settlement of that liability. Neither may it be denied, as we view it, that he had the power to attach to the payment such conditions and stipulations as to him seemed wise under the circumstances then existing. He had jurisdiction both of the parties and of the subject matter of the action. His judgment was confined to a
disposition of the subject matter as it affected the rights of the parties over whom he had acquired jurisdiction.
At the time the judgment was signed, the funds in which the respondents may have had a contingent interest had been pilfered. As to such funds, the former clerk was in default. Hence the judgment entered deprived the respondents of no right either vested or contingent. Their rights, if any, must attach to the fund paid in by the appellant. Since the fund was paid under valid conditions imposed by the provisions of paragraph (19), neither respondent has acquired any interest in any part thereof.
[235 N.C. 538] It was suggested in the argument here that the judgment fails to stipulate the time when the right of reversion to the appellant shall accrue. But under these circumstances the law would require the appellant to allow a reasonable time for the several claimants to appear and claim the several amounts due them. It has waited more than fifteen years and until the individual judgments are barred by the statute of limitations, G.S. § 1-47. It cannot be said that it has acted with undue haste in asserting its right to the balance now remaining in the hands of the clerk.
For the reasons stated, the judgment entered is reversed.