Wagener & Co. v. Swygert ( 1889 )

The opinion of the court was delivered by

Mr. Chiee Justice Simpson.

The defendants, John S. Swygert, jr., and John S. Swygert, sr., in 1883 executed a joint mortgage of certain lands (one or more tracts being located in Fair-field County and the remainder in Lexington County, John S. Swygert, jr., owning individually the lands in Fairfield and a portion in Lexington, and John S. Swygert, sr., owning a tract in Lexington) to secure a certain joint bond of these parties to the plaintiffs for a very large amount, some $40,000. John S. Swygert, jr., resided in Fairfield, and John S. Swygert, sr., in Lexington on his tract thus mortgaged. It seems that John S. Swygert, jr., was engaged in business in Fairfield, and John S., sr., his father, became his surety on his bond for advances, &c., made by the plaintiffs.

In 1887 a suit was instituted in Fairfield County to foreclose said mortgage and for judgment for any deficiency which might remain after applying the proceeds of the land sought to be sold; and the defendant, Yarborough, to whom John S. Swygert, jr., had made an assignment for the benefit of creditors, after the date of the mortgage, was made a party. The defendants, Swygerts, were both served with summons, and it appears that Swygert, sr., sent the summons served on him to his son in Fairfield, who employed Messrs. Ragsdale & Ragsdale, attorneys at Winnsboro, to appear and answer, and a joint answer for these defendants was put in by these attorneys. Upon the hearing a judgment of foreclosure was ordered, with leave to enter execution for any deficiency. This judgment or decree was obtained upon the report of a referee, to whom the question of the amount due on the bond and mortgage had been referred.

After the sale of the lands of John S. Swjrgert, jr., in Fair-field County under this judgment, and it had been transferred to Lexington County to be enforced there, the attorneys, now representing John S. Swygert, sr., were, on motion, substituted in the place of Messrs. Ragsdale; whereupon they gave notice of a motion to vacate said judgment in so far as the said John S. Swygert, sr., was concerned, and for leave to withdraw the answer alleged to have been originally filed in his behalf. The grounds upon which this motion was based seem to have been : 1st. That Messrs. Ragsdale had no authority to represent Swygert, sr.; and 2d. Excusable neglect on the part of the said Swygert.

His honor, Judge Witherspoon, dismissed the motion, after full hearing upon numerous affidavits for and against. The appeal alleges error in the findings of fact by his honor as to the employment of Messrs. Ragsdale as attorneys for John S. Swygert, sr., and also in reference to the excusable neglect relied on. “2d. That his honor ei’red in not vacating the judgment, allowing the defendants to answer, setting up a plea of jurisdiction, it being apparent to his honor that the court in which the alleged judgment was rendered was without jurisdiction over the defendant.” And because his “honor erred in not deciding upon the facts presented before him, and on this motion, which are set out in the body of the decree, that the court was without jurisdiction, and said judgment therefore void.”

We have read the affidavits submitted on the hearing of the motion, and we concur in the findings of the Circuit Judge, for the reasons fully stated in the decree. Swygert, the father, was duly served with a summons. This gave the court jurisdiction of his person, and although he appears to have been quite an old man, yet he was in charge of his own affairs, giving his personal attention and supervision thereto, including a saw mill near Columbia, and the evidence was not sufficient to warrant the court in finding that he was mentally incapacitated from understanding the nature of the proceedings instituted against him and of the requirements of the summons served upon him.

But even if this matter was doubtful, in the absence of error of law in connection with the findings of fact, this court would not interfere. LeConte v. Irwin, 19 S. C., 557; Higgins v. Wait, 28 S. C., 606, and also 5 S. E. Rep., 361. If he hada defence to the action, it was his duty to see that it was set up, and if he chose to rely upon his son (which it appears he did by sending the summons to him), and the son failed in properly protecting him, this was misplaced confidence, for which he must take the consequences. The plaintiffs certainly could not be held responsible. If he did not intend to authorize his son to conduct the defence for him, including the employment of attorneys, it was his duty to attend to this matter himself: and not having done so he must have known, or should have known, that the judgment would go against him by default. We see no ground for relief to him now, neither because Messrs. Ragsdale were not authorized to appear for him, nor from excusable neglect on his part.

As to the question of jurisdiction. The code provides that “in all other actions (and this includes actions for the recovery of money) the action shall be tried in the county in which one or more of the defendants reside.” {Code, section 1.46.) And for foreclosure of mortgages “in the county in which the subject of the action, or some part thereof, is situated.” {Code, section 144.) See, also, Code, section 188, as to the power of the court in foreclosure proceedings to direct payment of any residue, after applying proceeds of the sale of the mortgaged premises. John S. Swygert, jr., resided in Fairfield County, where the action was brought. John S. Swygert, sr., was summoned to appear and answer in that county. A part of the subject of the action,' to wit, of the mortgaged real estate, was situate in that county, and we think, therefore, that, the court below had jurisdiction of the whole matter, including the foreclosure directed and the judgment for the residue after sale of the lands, and the application of the proceeds thereof. Barrett v. Watts, 13 S. C., 411.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.