North Carolina: first in flight to void judgment relief?
And if the court has no jurisdiction over the subject matter of the action, the judgment in the action is void. A void judgment is one which has a mere semblance, but is lacking in some of the essential elements which would authorize the court to proceed to judgment. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.” It is well established law that a void judgment is no judgment, is a nullity without life or force, no rights can be based thereon, and it can be attacked collaterally by anyone whose rights are adversely affected by it. Reid v. Bristol, 241 N.C. 699, 86 S.E.2d 417; Casey v. Barker. Although Rule 60(b) contains the requirement that all motions made pursuant thereto be made “within a reasonable time,” the requirement is not enforceable with respect to motions made pursuant to Rule 60(b)(4), because a void judgment is a legal nullity which may be attacked at any time. 11 Wright and Miller, Federal Practice and Procedure: Civil §§ 2862, 2866 (1973). If the judgment of divorce from bed and board at issue in the present case is void, then, as with any other void judgment, it establishes no legal rights and may be vacated without regard to time. Cunningham v. Brigman, 263 N.C. 208, 139 S.E.2d 353 (1964). Our Supreme Court has described a void judgment as “one which has a mere semblance but is lacking in some of the essential elements which would authorize the court to proceed to judgment.” Monroe v. Niven, 221 N.C. 362, 364, 20 S.E.2d 311, 312 (1942). “When a court has no authority to act its acts are void.” If the court was without authority, its judgment . . . is void and of no effect. A lack of jurisdiction or power in the court entering a judgment always avoids the judgment, and a void judgment may be attacked whenever and wherever it is asserted, without any special plea. Hanson v. Yandle, 235 N.C. 532, 535, 70 S.E.2d 565, 568 (1952), Carpenter v. Carpenter, 244 N.C. 286, 93 S.E.2d 617 (1956). ). A void judgment, however, binds no one and it is immaterial whether the judgment was or was not entered by consent. Hanson, supra. “[I]t is well settled that consent of the parties to an action does not confer jurisdiction upon a court to render a judgment which it would otherwise have no power or jurisdiction to render.” Saunderson, supra at 172, 141 S.E. at 574. Laches is an equitable doctrine and ordinarily should not be a defense to a motion to open a judgment that is void. 46 Am. Jur. 2d Judgments § 752 (1969). In Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26 (1944), plaintiff sought to have a tax foreclosure sale declared invalid for want of proper service of process. In deciding for the plaintiff, the court stated, “It is likewise elementary that unless one named as a defendant has been brought into court in some way sanctioned by law . . ., the court has no jurisdiction of the person and judgment rendered against him is void.” Id. at 70, 71, 29 S.E.2d at 28. The court in Powell also examined whether such a judgment was subject to a collateral attack. “No statute of limitations runs against the plaintiffs’ action by reason of the judgment of foreclosure, and laches, if any appeared, is no defense.” Id. at 71, 29 S.E.2d at 29; see Page v. Miller and Page v. Hynds, 252 N.C. 23, 113 S.E.2d 52 (1960). Time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.” Monroe v. Niven, 221 N.C. 362, 365, 20 S.E.2d 311, 313 (1942). “A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exception.” If there be a defect, e.g., a total want of jurisdiction apparent upon the face of the proceedings, the court will of its own motion, ‘stay, quash, or dismiss’ the suit. This is necessary to prevent the court from being forced into an act of usurpation, and compelled to give a void judgment . . . so, (out of necessity) the court may, on plea, suggestion, motion, or ex mero motu, where the defect of jurisdiction is apparent, stop the proceedings. 238 N.C. at 646, 78 S.E.2d at 717-18. A void judgment is not a judgment at all, and it may always be treated as a nullity because it lacks an essential element of its formulation. See Clark v. Carolina Homes, Inc., 189 N.C. 703, 128 S.E. 20 (1925). When a purported consent judgment is void because the consent is by an attorney who has no authority to consent thereto, the party for whom the attorney purported to act is not required to show a meritorious defense in order to vacate such void judgment. Bath v. Norman, 226 N.C. 502, 505, 39 S.E.2d 363. Where there is no service of process, the court has no jurisdiction, and its judgment is void. A void judgment is a nullity, and no rights can be based thereon. Collins v. Highway Com., 237 N.C. 277, 74 S.E.2d 709; Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 “‘The passage of time, however great, does not affect the validity of a judgment; it cannot render a void judgment valid.’ 31 Am. Jur., 66; Anno. 81 A.S.R., 559,” Now 30-A Am. Jur., 170. Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311. See also Com’rs. of Roxboro v. Bumpass, 233 N.C. 190, 63 S.E.2d 144. A void judgment is without life or force, and the Court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” (Our Italics.) Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Dail v. Hawkins, 211 N.C. 283, 189 S.E. 774; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554; Mills v. Richardson, supra. See McIntosh, N.C.P.&P;, Secs. 651, 652 and 653. Quoting from Boone v. Sparrow, supra, “A void judgment is not a judgment and may always be treated as a nullity . . . it has no force whatever; it may be quashed ex mero motu. Clark v. Homes, 189 N.C. 703, 128 S.E. 20.” And quoting from the latter, “A void judgment is not a judgment and may always be treated as a nullity. It lacks some essential element; it has no force whatever; it may be quashed ex mero motu. Stallings v. Gully, 48 N.C. 344; McKee v. Angel, 90 N.C. 60; Carter v. Rountree, 109 N.C. 29; Mann v. Mann, 176 N.C. 353; Moore v. Packer, 174 N.C. 665.” A void judgment is without life or force, and the court will quash it on motion, or ex mero motu. Indeed, when it appears to be void, it may and will be ignored everywhere, and treated as a mere nullity.” (Emphasis added.) The later decisions are in full accord: Stafford v. Gallops, 123 N.C. 19, 31 S.E. 265; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Duffer v. Brunson, 188 N.C. 789, 125 S.E. 619; Simms v. Sampson, 221 N.C. 379, 20 S.E.2d 554. See McIntosh, N.C. P. & P. 734-737. A party who is subject to an order by a trial court which is void, may attack that order at any time, pursuant to Rule 60(b)(4) of the Rules of Civil Procedure. N.C.G.S. § 1A-1, Rule 60(b) (1990); Allred, 85 N.C. App. at 141, 354 S.E.2d at 294 (void judgment is legal nullity which may be attacked at any time). A Void judgment . . . binds no one and it is immaterial whether the judgment was . . . entered by consent.” Id. at 144, 354 S.E.2d at 295. Rule 60(b)(4) provides that a court may relieve a party from a judgment if it is void. N.C. Gen. Stat. § 1A-1, Rule 60(b)(4)(1990). A void judgment is a nullity which may be attacked at any time. Allred v. Tucci, 85 N.C. App. 138, 141, 354 S.E.2d 291, 294, cert. denied, 320 N.C. 166, 358 S.E.2d 47 (1987). If a court has no jurisdiction over the subject matter, the judgment is void. Pifer v. Pifer, 31 N.C. App. 486, 229 S.E.2d 700, 702 (1976). A void judgment resembles a valid judgment, but lacks an essential element such as jurisdiction or service of process. Windham Distributing Co., Inc. v. Davis, 72 N.C. App. 179, 323 S.E.2d 506 (1984), disc. rev. denied, 313 N.C. 613, 330 S.E.2d 617 (1985). A judgment is not void if “‘the court had jurisdiction over the parties and the subject matter and had authority to render the judgment entered.'” Id. at 181-182, 323 S.E.2d at 508 (quoting In re Brown, 23 N.C. App. 109, 110, 208 S.E.2d 282, 283 (1974)). It should be noted that since the Judgment entered by Judge Griffin on 18 March 1992 is void, no final judgment on the merits has been entered in this case. Any attempt by the defendants to appeal from that void judgment then, is inconsequential, and any errors made in attempting such appeal are without lasting significance. The plaintiff may raise a collateral attack on the order taxing costs as a defense to defendant’s motion to dismiss only if the order taxing costs was void ab initio. State v. Sams, 317 N.C. 230, 345 S.E.2d 179 (1986); Stroupe v. Stroupe, 301 N.C. 656, 273 S.E.2d 434 (1981); Lumber Co. v. West, 247 N.C. 699, 102 S.E.2d 248 (1958); Massengill v. Lee, 228 N.C. 35, 44 S.E.2d 356 (1947); Edwards v. Brown’s Cabinets, 63 N.C. App. 524, 305 S.E.2d 765 (1983); Manufacturing Co. v. Union, 20 N.C. App. 544, 202 S.E.2d 309, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974); but see Thornburg v. Lancaster, 303 N.C. 89, 277 S.E.2d 423 (1981); contra In re Will of Parker, 76 N.C. App. 594, 334 S.E.2d 97, disc. rev. denied, 315 N.C. 184, 337 S.E.2d 859 (1985). In State v. Sams, 317 N.C. 230, 235-36, 345 S.E.2d 179, 182-83, this Court stated that [a]n order is void ab initio only when it is issued by a court that does not have jurisdiction. Such an order is a nullity and may be attacked either directly or collaterally, or may simply be ignored. North Carolina allows for collateral attacks. See Daniels v. Montgomery Mutual Insurance Co., 320 N.C. 669, 360 S.E.2d 772 (N.C. 10/07/1987). A void judgment, however, binds no one. Its invalidity may be asserted at any time and in any action where some benefit or right is asserted thereunder. A judgment is void if the court rendering it does not have jurisdiction either of the asserted cause of action or of the parties. Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460; Mills v. Richardson, 240 N.C. 187, 81 S.E.2d 409; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; Clark v. Homes, 189 N.C. 703, 128 S.E. 20; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716.