
    R. C. BANKS and Wife v. R. B. LANE, Sheriff, et als.
    (Filed 10 May, 1916.)
    Drainage Districts — Process—Injunction—Different County — Motions—Notice,
    Where a drainage district has been established under a valid statute, an injunction against the assessment provided for may not successfully be prosecuted in an independent action by the owner of the land in the district, on the ground that the statutory notice had not been given him, the remedy being by motion in the proceedings instituted in the county for the formation of said district wherein are the records and where a proper reassessment may be had if the same should be lawfully required; and the plaintiff may obtain his restraining order in those proceedings if he is entitled thereto. Semble, notice of the motion should be served on the owners of land in the district as required by the statute.
    Walker and Brown, JJ., concurring; Allen, J., dissenting.
    
      Loftin, Dawson & Manning for plaintiffs.
    
    
      Guión & Guión for defendants.
    
   Claek, O. J.

This is a petition to rehear this case, 170 N. C., 14. Tbe action was brought by R. C. Banks and wife, tbe feme plaintiff being tbe mortgagee of a tract of land embraced in tbe “Mosely Creek Drainage District,” against George B. Lane, tbe sheriff of Craven County, and George B. Pate, tbe mortgagor and owner of said tract of land, who was in possession, and the Mosely Creek Drainage District.

Tbe feme plaintiff set out her chain of title down to August, 1913, when she conveyed to George B. Pate and took from him a mortgage back to secure tbe purchase money. Her complaint averred that she and those under whom she claims bad no notice served on her personally of tbe proceedings for tbe assessment made in said drainage district; that said George B. Pate was insolvent, and asked a restraining order against fhe collection of said assessment.

It is very evident that by tbe expression, “those under whom she claims,” tbe feme plaintiff refers to the grantors in tbe deeds set out in her chain of title, and not to George B. Pate. Tbe answer does not deny, but asserts, that tbe latter, who is in possession, has been served with summons in tbe cause. In our former decision we called attention to tbe fact that tbe statute did not require that mortgagees and lien-holders by.judgment or otherwise should be served with summons; that to require them to be parties would greatly increase tbe difficulty of creating these drainage districts, and they would have no interest to serve in tbe creation thereof. As was said in Drainage Comrs. v. Farm Assn., 165 N. C., 701, where tbe point was presented, mortgagees and lien-holders are not required to be served with notice personally, because “A mortgage is subject to the authority to form these drainage districts for the betterment of the lands embraced therein. The statute is based upon the idea that such drainage districts will enhance the value of the lands embraced therein to a greater extent than the burden incurred by the issuing of the bonds, and the mortgagee accepted the mortgage knowing that this was the declared public policy of the State.”

In our former opinion we held that it'was no more necessary that mortgagees and other lien-holders should be consulted in the formation of such districts .than to permit a mortgagee or lien-holder, in the like absence of statutory provision, to enjoin an assessment for the pavement of sidewalks or streets or other improvements of property. We said that the proceeding was in rem, and that the decree for the formation of the district could not be made until a majority of the' original landowners, and the owners of three-fifths of all the land which will be affected, have signed the petition, and until all other landowners in the district are notified, and that the decree creating the district must be presumed to have been regularly granted and advertisement of notice for other persons interested in the land has been made as required by secs. 5 and 15, chapter 442, Laws 1909, and sec. 1, chapter 61, Laws 1911. The complaint does not aver that the plaintiff is the owner of the land, but, on the contrary, that George B. Pate is the owner and in possession, and does not negative that notice by publication was duly made as to all others in interest, but merely avers that the feme plaintiff was not served personally — which is not necessary.

The Drainage Act has been held constitutional, and the validity of the district laid off under it cannot be attacked collaterally. Newby v. Drainage District, 163 N. C., 24.

The district has been formed, the assessment made without objection from landowners, and Laws 1909, chapter 442, sec. 37, provides that the collection of assessments shall not be defeated, where the proper notices have been given, by reason of any defects occurring prior to the order confirming the final report, but that such report shall be conclusive that all prior proceedings were regular, unless appealed from. This is absolutely necessary if the public are to be protected in their purchase of the bonds put upon the market. It is to be presumed that when the Court has rendered such final judgment and the bonds are issued there will be no interference with the collection of the assessments to pay the bondholders, but that all controversies were thrashed out and settled before such final judgment.

Though the proceeding to create the drainage district was instituted before the plaintiff executed her deed to Pate in August, 1913, yet it may well be tbat tbe summons, as tbe answer avers, was served on bim after tbat date and before tbe final judgment making tbe assessments and directing tbe issue of tbe bonds. Tbis is another reason wby tbe motion should be made in tbat cause where tbe facts in regard to tbe proceedings are of record.

If tbe plaintiff wishes to allege collusion between the owner of tbe land, Pate, and tbe other members of tbe drainage district, which she lias not done, she ought to be allowed a day in court to do tbis. But she cannot do it in tbis collateral way under a restraining order against tbe sheriff of tbe county, who has no interest, but was obeying a legal mandate of tbe court, for tbe statute puts these assessments upon tbe same basis as tbe levy of taxes. She must seek her remedy by a motion in tbe cause in which the judgments were entered creating tbe district and confirming the assessment and directing tbe issue of bonds. In tbat proceeding are the records which will show whether-the publication was made of notices required as to others than tbe owners of tbe land (which last alone were required to be served with summons), and whether there was any fraud or collusion to her detriment.

On such motion being made before tbe clerk in tbat cause, the' plaintiff can, if so advised, at once apply to tbe judge to issue a restraining order therein until her motion shall be passed upon, and if an issue of fact is raised, tbis issue can be transferred to tbe court at term for trial by a jury.

Tbe counsel for tbe plaintiff seem to be aware tbat tbe records in-tbat case were necessary, for they have applied on tbis rehearing for a certiorari to send up tbe records in tbat ease. Tbis motion we have-refused because tbat proceeding was no part of tbis case, and, indeed, tbe records therein were not before us on bearing tbe appeal whose decision it is now sought to rehear. Tbe authorities are numerous-tbat an injunction will not lie against an execution by an independent action, but tbat tbe remedy is always by motion in the cause whose decrees it is sought to impeach (except where fraud is alleged), and by a restraining order in tbat cause, if necessary. Parker v. Bledsoe, 87 N. C., 221, and cases there cited, and cases since, citing tbat case. Tbe records to be passed upon are in tbat cause, and should not be brought into another case for examination collaterally.

Tbe plaintiff, therefore, has a remedy by proceeding regularly under a motion in that cause and by a restraining order therein if necessary. Tbis will entail no disadvantage or delay upon her, for tbe present injunction will bold until tbis opinion is certified down to tbe court below, which will then dismiss tbis action. In tbe meantime, tbe plaintiff can make her motion and application for a restraining order in. tbat cause.

Besides, tbis proceeding would be an attempt to take “two bites at a cherry,” for if tbe restraining order were made permanent in tbis case tbe plaintiff must proceed in tbe original cause to bave tbe assessment reallotted if there bas been any action taken wbicb makes it illegal or excessive. Sucb reassessment could not be made in tbis proceeding, and certainly tbe tract of land is not entitled in any event to be exempt from all assessments. Tbe parties chiefly interested are tbe other members of tbe drainage district, who will bave notice of any motion in that cause, and bave opportunity to defend. Whatever reduction, if any, is made in that proceeding in tbe assessment on tbis tract will necessarily be made up by raising tbe assessment on tbe owners of tbe other lands in that district, and they should.bave opportunity to be heard.

Tbis denies tbe plaintiff no right if she bas be'en wronged, and will cause her no delay. We send her to tbe proper tribunal to move in tbe action in* wbicb tbe assessment bas been made of wbicb she bas complained, and she can there be fully beard to vindicate her rights, if any, to a reduction in tbe assessment. Indeed, that proceeding "was brought in Craven County, where tbe records therein are to be found, while tbis collateral proceeding to question tbe regularity of proceedings therein is brought in Lenoir.

Tbe mere fact, so strongly insisted on by plaintiff’s counsel, that while this assessment is only $445, all tbe assessments on tbis tract aggregate $2,200 on a tract of land wbicb brought before it was drained $4,000 is a matter that was doubtless considered before tbe decree making tbe assessment and directing tbe issue of bonds was entered. Tbe presumption is that tbe land was benefited far more than tbe amount of these assessments, or objection would bave been made by Pate, tbe landowner, or by tbe plaintiff, as to whom notice by publication is, by tbe statute, presumed to bave been given. But if there bas been any wrong done, it is in that cause that tbe assessment should be reconsidered and upon proper proof reduced or reaffirmed.

Petition denied.

Walkek, J.,

concurring: Tbe original proceedings are pending in Craven Superior Court, and tbis action to enjoin tbe execution issued upon tbe judgment rendered therein is brought in Lenoir. Tbe judge merely finds as a fact that there was no service upon tbe plaintiff, but does not find that it appears affirmatively on tbe face of tbe Craven judgment there was no sucb service, and for all that does appear it may be and is very likely that the judge did not bave tbe original record before him at tbe time be made bis findings. If it appeared from tbe record that tbe plaintiff was served when in fact she was not, then by all our cases on tbe subject tbe only remedy is by motion in the cause to correct the record. Doyle v. Brown, 72 N. C., 393; Johnson v. Futrell, 86 N. C., 122; Sumner v. Sessoms, 94 N. C., 371. The judgment is presumed to have been rendered on proper service appearing in the record, until the contrary is shown. We cannot assume that a court will give a judgment against a party in a case where it appears on the face of the proceedings that there had been no service upon him, either actual or constructive, because no court can be presumed to render a void judgment. All things, on the contrary, are supposed to have been done regularly and according to the course and practice of the court. This being so, and it being admitted that there is a judgment upon which process had issued to subject the plaintiffs’ land to its satisfaction, we must act on the assumption that the record will show that the court proceeded regu-lariy, and that it appears upon the record that process was duly served in one form or another, and we are not at liberty to presume otherwise. This being so, the only remedy, upon reason and ample authority, for correcting the record and making it speak the truth, if it states the fact falsely, is by a motion in the cause itself for proper relief, where the court that rendered the judgment can find the fact for itself and enter the proper order if a mistake was committed. If we should allow this to be done by an independent action in another county, it would produce confusion and unseemly conflict between-the court rendering the judgment and some other court not having charge and control of the record, and it might also result in injustice, as even the most prudent person would search only the records of Craven County to find what judgments are docketed there, and would not consider it necessary that he should search the records of all the counties to ascertain if a judgment in Craven County had been impaired in an independent action or proceeding brought in some other county. This is no hardship on the defendant in the judgment, who alleges that he was not served with process, as when the motion is made in the proper court to correct the judgment or set it aside the court has the jurisdiction, upon application, to stay the execution which has been issued thereon, by a supersedeas or injunction, until the matter can be fully heard, the facts found in the orderly way, and the proper relief administered, if there has been irregular action by the court in the respect complained of by the petitioner. There is not the slightest danger of the plaintiff losing her land, or being prejudiced longer by the judgment condemning it to the payment of the assessment, if she will proceed with reasonable diligence in the manner indicated. Each court is the keeper of its own records, and can and will, on proper application, amend them so that they will actually speak the truth, and not merely import verity, which in law they do.

BbowN, J.,

concurring: Wben this case was first before us, I, with the other members of the Court, was under the impression that service of the summons in the drainage proceedings was made on the mortgagor Pate, and that he owned the land subject-to the mortgage to Mrs. Banks at the time the drainage proceeding was commenced. Upon further investigation, it appears that when that proceeding was commenced, Mrs. Banks had not sold the land, and that the relation of mortgagor and mortgagee did not then exist between her and Pate. It appears now by the judge’s findings that no service of the summons was ever made on either Mrs. Banks or Pate. It sufficiently appears, however, that the lands then belonging to plaintiff, formerly Florence Spivy, were set out and embraced in said drainage proceedings and were duly assessed in her name as one of the landowners within said district.

The drainage proceeding is.placed in the county of Craven and this action is pending in the county of Lenoir. I am of opinion that plaintiffs are entitled to relief, but that they should seek it by motion in'the cause, to he made upon notice in the drainage proceeding pending in Craven County.

I admit that Bowman v. Ward, 152 N. C., 602, is an apparent authority for the position that plaintiffs can seek such relief in an independent action, but in that case it appeared affirmatively upon the face of the record that no service was made either personally or by publication. In this case it does not appear affirmatively upon the face of the drainage proceedings that plaintiff was not made a party by service of summons or by publication. Those proceedings are not before us. It only so appears by the findings of the judge. I think this case, therefore, comes within what is held in Foard v. Alexander, 64 N. C., 69.

This is especially true in a case like this, which is not an action in personam, but one in rem. The land is sued and not the owner. No personal judgment is rendered against the owner, but the judgment condemns the land to pay the assessment. In the drainage proceedings the land is described and identified doubtless by the name of the owner. All the other owners have a personal interest in maintaining the integrity of the assessment. If the plaintiff is required to make her motion in the drainage proceedings, she is put to no disadvantage, and all the other landowners will be represented.

As pointed out by the Court, she is entitled to an injunction to be issued by a Superior Court judge in that proceeding, as ancillary thereto, to stop the sale of her lands until the matter can be heard.

In this particular case I think this method of proceeding is more ■ conducive to a proper administration of justice than an independent action.

AlleN, J.,

dissenting: I agreed to tbe former opinion because I understood from tbe oral argument it was conceded tbat process bad been served in tbe drainage proceeding on Pate, tbe mortgagor in possession; but I find on tbe rebearing not only tbat it was not intended to make such an admission, but also that tbis is not tbe fact, and while disposed to sustain proceedings for tbe drainage of swamp lands, which tend to improve tbe public health and add to tbe wealth of tbe State, I cannot give my assent to tbe doctrine tbat a court of equity is without power to restrain tbe sale of land under a judicial proceeding when neither tbe owner of tbe land nor any'one under whom she claims has bad a day in court, or has been served with process personally or by publication.

I do not believe it has ever been so held before, and tbe citation of one authority in support of tbe position (Parker v. Bledsoe, 87 N. C., 221), in which tbe summons was served, an answer filed, and judgment rendered for tbe amount admitted to be due, leads to tbe conclusion that tbe ruling is without precedent.

What are tbe facts?

Tbe land of the plaintiff, Mrs. Banks, was advertised for sale by tbe sheriff of Craven County on 1 February, 1915, to satisfy an assessment alleged to have been levied in a certain drainage proceeding, and tbis action was then commenced to restrain tbe sale upon tbe ground tbat no process was served on tbe plaintiff in tbe drainage proceeding, and tbat tbe assessment was therefore void.

A temporary restraining order was issued, and after several continuances it came on for bearing, tbe sheriff and the drainage district being parties and represented, and tbe plaintiff filed affidavits in support of their allegations; but bis Honor, not content with tbis, required tbe original papers in tbe drainage proceeding to be brought before him “in order tbat the court may determine tbe question of service as bearing upon tbe validity of tbe assessment above mentioned, lack of service having been pleaded as a ground for injunctive relief against said sale.” (See order, record, pp. 11 and 12.)

His Honor, then, having before him tbe affidavits and tbe original papers in tbe drainage proceeding, found tbe following facts: “And at tbis bearing, tbe plaintiffs having denied tbat any personal service has ever been made upon them or upon any of those under whom they claim, and having filed affidavits accordingly, and having denied tbat any proper and legal service of any kind has ever been made upon them or upon any of those under whom they claim, and tbe defendants having offered before tbe court nothing tending to prove tbat personal service has ever been made upon tbe plaintiffs or either of them, or any one under whom they claim, and having offered nothing to show that service of any nature has ever been made upon the plaintiffs or either of them, or any of those under whom they claim, and the defendants claiming that the status of this cause and the drainage laws of the State of North Carolina pleaded eliminate the necessity of service in order that said land may be assessed;'the court finds as a fact for the purpose of this hearing that no personal service has ever been made upon either of the plaintiffs or any of those under whom they claim, and finds that no service of publication has been properly made so as to authorize the said assessment against the said land, holding hereby that the assessment against the said land is invalid for the want of service upon the landowners and for lack of opportunity to be heard in court.”

These findings have not been disturbed, nor was the exception filed that they were not supported by evidence, and in them is the finding that neither the plaintiff nor any one under whom she claims was served with process, personally or by publication, in the drainage proceeding; and as the mortgagee claims under the mortgagor, this is a finding of fact that neither the mortgagee nor the mortgagor was served.

This is the record, and, as it seems to me, we ought not to give a narrow construction to the findings and one different from their legal effect, when we know from the agreed return to the certiorari, which counsel on both sides assumed would issue as a matter of course, that if the term “nor any one under whom she claims” does not include the mortgagor it is because the final judgment in the drainage proceeding was entered in 1912 and the mortgage was not executed until 1913, so that it was impossible for the mortgagor to have been served, because the mortgage was not in existence until after the proceeding was concluded.

We should either refuse to consider this agreed statement of counsel and give to the language “nor any one under whom she claims” its legal effect, and say it includes the mortgagor, or we should consider it and say that Pate was not served because he executed the mortgage after the drainage proceeding was at an end.

If there was no service of process, j)ersonally or by publication, on the plaintiff or on any one under whom she claims, in the drainage proceeding, is the plaintiff entitled to restrain the sale of her land? I think so, and that the ease of Bowman v. Ward, 152 N. C., 602, in which the opinion was written by Associate Justice Brown for a unanimous Court, is an authority directly in point.

In the Bowman case the land of the plaintiff was advertised for sale under execution, and an independent action was brought to restrain the sale upon the ground that there had been no service of process on tbe plaintiff in tbe action in wbicb tbe judgment was rendered, and it was beld tbat tbe plaintiff was entitled to injunctive relief.

Tbe Court said: “Tbe plaintiff sues to restrain the selling of her land under execution upon a judgment rendered by a justice of tbe peace and docketed in tbe Superior Court of Henderson County. . . . No service of tbe summons or of tbe attachment has ever been made, either personally or by publication, and no publication made. . . . His Honor denied tbe injunction upon tbe ground tbat tbe proceeding was void on its face. ¥e agree with him tbat tbe judgment is void, because it appears affirmatively upon tbe face of tbe record tbat no service, personally or by publication, has ever been made, either of tbe summons or attachment. ... We think, however, bis Honor should have restrained tbe sale, as tbe plaintiff is entitled to have tbe question finally determined as to tbe liability of her land for tbe judgment, and not be made to take tbe chance of losing it by forced sale under execution. If her land is liable for tbe judgment she should have tbe opportunity to pay it after a judicial determination.”

There is no intimation in tbe opinion tbat tbe plaintiff ought to have proceeded by motion in tbe original action, as is now suggested in tbe opinion of tbe Court; and why should she do sol If she has not been made a party to tbat proceeding by tbe service of process, why should she be compelled to make herself a party by moving therein, instead of requiring those interested in tbe proceeding to issue process against her, if they wish to bind her land?

I have felt constrained to express my views because on this record "the land of tbe plaintiff, wbicb she has sold for $4,000 on a credit, since tbe assessment was made and without knowledge of it, has been assessed $2,293.60, when she has bad no day in court and no opportunity to be beard; and this is not only a confiscation of her property, but it is subversive of tbe constitutional guarantee tbat no one shall be deprived of bis property “but by tbe law of tbe land.”  