Genobles v. West , 1885 S.C. LEXIS 87 ( 1885 )

The opinion of the court was delivered by

Mr. Justice Witherspoon.

A statement of the case is necessary to a proper understanding of the issues involved in this appeal. [The facts are all stated in the Circuit decree.]

We will first consider plaintiffs’ second exception, alleging that the Circuit Judge erred in refusing plaintiffs relief “because they came in by bill instead of by motion to set aside the decree complained of.” The judgment sought to be set aside by plaintiffs can only be impeached directly and not collaterally. The main purpose of this action is to have the former judgment adjudged null and void, upon the ground that plaintiffs were not personally served, as well as on account of alleged fatal irregularities and omissions in said action. All of the defendants in the former action are represented as plaintiffs in this action. It is true that this action seeks relief beyond the setting aside of the former action, but several causes of action can be united, and no objection has been urged as to improper uniting of causes of action in this case. We think that the former judgment is directly attacked in this action, and plaintiffs should have been permitted to impeach the same. But this view cannot avail plaintiffs who make this exception, as we are satisfied that in the former action the court did acquire jurisdiction over such plaintiffs by personal service of summons.

In this connection we will next consider the third, fourth, and fifth exceptions of the defendant, J. Walter West, which allege that the Circuit Judge erred in holding that the court never acquired jurisdiction over the persons of the plaintiffs, G. T. Ge-nobles and Henry C. Genobles, in the former action. Henry C. Genobles was a minor when the former suit was instituted. The Circuit Judge concludes from an examination of the record that he was personally served with the summons; but as the application for the appointment of the guardian ad litem does not itself show that it was personally served, and as the order appointing the guardian ad litem does not show' that it was filed, and as the guardian’s answer does not show that it was served on plaintiffs’ attorney, the Circuit Judge concludes that the record shows that as to the minor, Henry C. Genobles, the court never had jurisdiction in the former case — referring to Finley v. Robertson, 17 S. C., 439. The sheriff’s writ book, introduced without objection, shows that Henry C. Genobles was not personally served. The officer who made the proof of service upon the summons testifies before the referee that he remembers that Henry C. Genobles was not personally served in the former action. Henry C. Ge-nobles also testifies before the referee that he was not personally served in said action. We think this testimony is sufficient to overcome the presumption of service derived from the record. As a minor, Henry O. Genobles could not be bound by his consent, and the court could only acquire jurisdiction over him by personal service of the summons. We conclude that the court never acquired jurisdiction over the person of Henry C. Genobles, and that he is not bound by the judgment in the former case. The exception as to Henry O. Genobles must be overruled.

In this view it will not be necessary to consider the effect of the irregularities referred to by the Circuit Judge. It does not, however, occur to us that such irregularities can properly enter into the question of jurisdiction, as they arose subsequent to the service of the summons.

The Circuit Judge held that as the plaintiff, G. T. Genobles, was incorrectly called J. T. Genobles in the summons, and as he never appeared or answered, he is not bound by the former judgment. The referee and Circuit Judge both conclude that the plaintiff, G; T. Genobles, was personally served in the former action, although under the name of J. T. Genobles. The sheriff’s writ book, introduced without objection, shows that G. T. Genobles was personally served in the former action. Under the decision of Waldrop v. Leonard (22 S. C., 118), the plaintiff, G. T. Genobles, being then under no disability, must be held bound by the former judgment. The fourth and fifth exceptions of the defendant, J. Walter West, must be sustained so far as they relate to the interest of the plaintiff, G. T. Genobles, in the land, and the Circuit decree must be modified to that extent.

We agree with the Circuit Judge that the doctrine of estoppel does not apply in this case, as urged by defendant West. This disposes of the exceptions of the defendant, J. Walter West.

Having concluded that the court acquired jurisdiction over the persons of all of the plaintiffs in the former action, except Henry C. Genobles, we will recur to plaintiffs’ other exceptions involving alleged omissions and errors in the former proceeding after the service of the summons. As already observed, after jurisdiction has been acquired by such service, such irregularities do not render a judgment void.

Plaintiffs’ fourth exception alleges that the Circuit Judge erred “in not holding that the decree of Judge Mackey was voidable, and under the facts herein should be adjudged null and void.” One of the facts referred to in this exception is that the cause was on calendar 6, and that the decree was not endorsed upon the complaint. The act of March 8, 1875, provides that “no execution shall be signed on judgments obtained by default in any other manner.” This act does not provide that an order or judgment will be void unless entered upon the complaint. But wp concur with the Circuit Judge, that as the statute relates to form or manner, it is directory, and this failure would not invalidate a judgment otherwise regular.

Another circumstance referred to by plaintiff under this exception is that it does not appear that the final order was based upon a reference, or upon testimony taken as to the facts set forth in the complaint. It is to be presumed that the final order was based upon testimony as to the facts alleged in the complaint until the contrary appears. There is no sufficient evidence to show that the order was passed without testimony as to the facts. We are not at liberty to infer that such was the case. But even if it appeared that the former judgment was rendered without testimony, we think the Circuit Judge properly held that he could not correct it.

Plaintiffs in their exceptions also allege that the Circuit Judge erred in not holding that the signature of the clerk and seal of the court were necessary in issuing the summons in the former action. The summons, under the code, does not issue from the court, but is merely a notice by the plaintiff to the defendant, that an action has been commenced, in which the defendant can appear or not, as he thinks proper. • It is not necessary that the summons should be signed and sealed by the clerk of the court.

The other omissions and irregularities referred to in plaintiffs’ other exceptions all occurred after all the plaintiffs, except Henry C. Genobles, had been served with the summons in the former action, and we agree with the Circuit Judge that they cannot affect the validity of the final order or judgment in said action.

Plaintiffs’ third, fourth, sixth, seventh, and eighth exceptions raise no specific objection to the Circuit decree, and cannot be considered. Plaintiffs’ ninth, tenth, and eleventh exceptions cannot be sustained, as nothing was adjudicated by the Circuit decree, as to the six acres of land therein referred to.

The second and third exceptions of the defendant, Susan B. Genobles, the widow, are based upon the ground of error in the Circuit Judge in refusing to allow her claim of dower in the whole land, or at least in the surplus after paying the mortgage debt. Susan B. Genobles renounced her dower according to law upon the mortgage executed by her husband, John Genobles, to W. D. Fowler. This renunciation must be controlled by the terms of the mortgage on which it is made, to which it has reference, and of which it is a part. By recurring to the statement of facts herein it will be observed that the mortgage gave Fowler, the mortgagee, the power to foreclose by a public sale, and to pay from proceeds the mortgage debt and hold surplus subject to rights of other incumbrances, if any, and if none, then to pay same to the mortgagor. It is not contended that Fowler, the mortgagee, abuse'd the trust reposed in him, or in any way failed properly to execute the power conferred upon him. The sale of the mortgaged land was made in the life-time of the mortgagor (the husband), and the surplus, after paying the mortgage debt and two small judgments (incumbrances), was turned over to the mortgagor as provided by the terms of the mortgage. Susan B. Genobles having voluntarily made herself a pai’ty to the mortgage by her renunciation, and having thereby disposed of the surplus proceeds of sale, we do not think there was error in refusing her claim of dower.

The fourth exception of Susan B. Genobles alleges that the Circuit Judge erred in refusing to allow her dower in the six acres of land conveyed by John Genobles to J. F. Genobles. The pleadings show that the only issue raised by this defendant was as to her claim of dower in the mortgaged land, upon which dower was renounced. It is true, that a deed for this six acres was introduced before the referee, and that the six acres are in the possession of the defendant West. But the defendant West does not hold or claim the six acres under the Fowler mortgage, but by a title distinct from the mortgage. The pleadings were not amended, nor were they considered as amended by the referee or Circuit Judge so as to extend defendant’s claim of dower to embrace the six acres. This exception does not seem to have been taken to the referee’s report, or considered by the Circuit Judge. The defendant, Susan B. Genobles’, fourth exception must be overruled, but without prejudice to her right to have the pleadings amended in the Circuit Court so as to embrace the six acres, if so advised, before the case is finally disposed of in the Circuit Court.

The fifth exception of the defendant, Susan B. Genobles, must be overruled, as there is sufficient evidence that her renunciation of dower was taken before a trial justice.

The judgment of this court is that the judgment of the Circuit Court, except as herein modified as to the plaintiff, G. T. Genobles, be affirmed. ¹