dissenting: The irregularities in this action are glaring and numerous, as I will undertake to demonstrate.
1. The attempted service of summons on the defendant is by publication, based on the following affidavit:
*602“M. L. Wilson, being duly sworn, says that he is one of the attorneys for the plaintiff, Mrs. Josephine Pope White, in the above entitled case; that the defendant herein cannot, after due diligence, be found in the State of North Carolina; that a cause of action exists against the defendant, and in favor of the plaintiff, for the purpose of obtaining a divorce a mesna et thoro and alimony.”
This affidavit is fatally defective in that it fails to state any facts showing a cause of action in favor of the plaintiff.
In Bacon v. Johnson, 110 N. C., 116, the Court, in an opinion to which all agreed, said: “The service of the summons or notice as original process in the action by publication must be made strictly in accordance with the requirements of the statute. .' . . The Court must seé that every prerequisite prescribed exists in any particular case before it grants the order of publication. Otherwise, the publication will be unauthorized, irregular, and fatally defective, unless in some way such irregularity shall be waived or cured. Spiers v. Halstead, 71 N. C., 209; Windley v. Bradway, 77 N. C., 333; Wheeler v. Cobb, 75 N. C., 21; Faulk v. Smith, 84 N. C., 501.
“The statute cited above, among other things pertinent here, prescribes and requires that in order to obtain an order that service of notice of the action be made by publication, if must appear by affidavit 'that a cause of action (exists) against the defendant in respect to whom service is to be made. . . .’ It is not sufficient to state generally that a cause of action exists against the defendants, or that they are necessary parties to the action. A brief summary of the facts constituting the cause of action, or of the facts showing that the parties are necessary parties to the action, should be stated so that the Court can see and determine that there exists a cause of action, or that the parties are necessary for some appropriate purpose. The party demanding the order shall not be the judge to determine that a cause of action exists, or that the parties sought to be made parties are necessary parties. It is the province and duty of the Court to see the facts and determine the legal question as to whether there is a cause of action or not.”
This authority has been cited frequently, and has never been modified, and so long as it stands it must be held that the affidavit is fatally defective, and if so, the order for publication is void, and there has been no service on the defendant by publication or otherwise.
If this position is sound, the defendant was not required to take any notice of the issuing of the summons if he knew of it, and he is entitled to have the judgment set aside without regard to the merits.
“It is the clear right of every person to be heard before any action is invoked and had before a judicial tribunal, affecting his rights of person or property. If no opportunity has been offered, and such *603prejudicial action has been taken, as well wben be was never made a party as wben by death be bas ceased to be, in either case, the severance being equally effectual and absolute, the Court will at once, wben judicially informed of the error, correct it, and relieve him and bis estate from the wrong, not because injustice is done in the particular case, but because it may have been done, and the inflexible maxim dudi alteram will be maintained. In such case the Court does not investigate the merits of the matter in dispute, but sets aside the judgment, and reopens the otherwise concluded matter, to afford the representative the opportunity, not open to bis intestate, and which the law accords to all, of being beard in opposition.” Lynn v. Lowe, 88 N. C., 482. Approved in Card v. Finch, 142 N. C., 145.
Certainly the rule should not be relaxed in a case like this where no right of an innocent purchaser bas intervened and the affidavit is not made by a party, but by an attorney, who could only speak from hearsay, and was doubtless incorporating in bis affidavit not facts but the opinion given to bis client.
2. The notice of the action was published once a week for four weeks, beginning in February, so that publication was complete by the last of March, 1914, and the complaint was not verified until 14 April, 1914, more than two weeks after publication, and the statute, Rev., 442, sub-sec. 5, requires that “Where the action is for divorce, and in all cases where publication is made, the complaint must be filed before the expiration of the time of publication ordered.”
3. The statute (Rev., 1566) requires the wife to file her complaint before applying for alimony, stating facts entitling her to the relief demanded, “which, upon application for alimony, shall be found by the judge to be true,” and it was held in Moore v. Moore, 130 N. C., 336, that “the court below must find the facts.”
Again, Garsed v. Garsed, 170 N. C., 673: “In White v. White, 84 N. C., 340; McQueen v. McQueen, 82 N. C., 471; Ladd v. Ladd, 121 N. C., 119; Dowdy v. Dowdy, 154 N. C., 558; Page v. Page, 161 N. C., 1715, it is held that the complaint must aver, and facts must be found upon which it can be seen that the plaintiff did not by her own conduct contribute to the wrongs and abuses of which she complains.”
None of these facts are found in the order for alimony, and the only finding made by the judge is that the plaintiff had received no support from the defendant since January, 1913.
4. The land of the defendant, worth more than $3,000, was sold under execution .to pay $500, and bought by the plaintiff for the amount of her judgment when she had in her possession personal property of the defendant of the value of $1,300, in violation of the terms of the execu*604tion and. of the provisions of the statute which required the judgment to be made first out of the personal estate.
These proceedings were had in the absence of the defendant, and when he had not been heard, and the plaintiff ought to be required to conform to the law.
In the action to have the defendant declared a trustee there was no service of the summons attempted except by publication, and the order of publication is based on an affidavit made by the same attorney as in the action for divorce, on the same day, and in the same language, and I therefore think for the reasons heretofore stated that there has been no service, and that the judgment is void, and that the defendant has the right to have it set aside.
In this action it is also found as a fact by the judge that the defendant has shown good cause for not moving earlier to set the judgment aside, and it is not contended that there is no evidence to support the finding. His motion is also made within the time prescribed by sec. 449 of the Revisal, which permits one to have a judgment set aside for good cause within twelve months after notice of the judgment, and within five years after its rendition, and I do not think we have the right to disturb a finding of fact made by the judge which is supported by evidence.
The two actions have some features that are peculiar, and if the defendant may be criticized for not making a defense if he knew that a summons had issued, it is strange that the plaintiff, although living-four years after the action for divorce was commenced, has never insisted upon its trial, and it stands today without verdict or judgment sustaining the allegations of her complaint, indicating that the purpose of the action was not for a divorce, but to devise a way of transferring the title of the defendant in his lands to the plaintiff.
BeowN, J\, concurs in this opinion.