Sandel v. Crum ( 1924 )

December 31, 1924. The opinion of the Court was delivered by This is an appeal from an order of Judge Henry requiring the Clerk of Court to issue a writ of assistance directing the Sheriff to put the respondents in possession of certain lands which had been purchased at the Master's sale. This order was passed under a rule to show cause, was issued and served upon the appellant, and after return was made by her, and after full hearing and argument.

The exceptions are five in number. Exceptions 1, 2, 3, and 4 are overruled as being without merit, as to them Judge Henry could not have done otherwise than find as he did, and issue the order he did.

Exception 5 is as follows:

"Error because said decree is void, in that his Honor, I.W. Bowman, who signed the said decree, is related to the defendant, John W. Bowman, within the degree prohibited by law, in violation of article 5, § 6, Constitution of 1895 of this state, in that the defendant, John W. Bowman, is the son of his Honor, I.W. Bowman."

This exception is overruled. The decree was not void, but voidable. Both attorneys for the plaintiff and defendant, Bowman, knew of the relationship and consented to the decree. Benj. J. Crum had been personally served, and had made default. None of the parties to the suit, under which decree the sale was made by the Master, and the respondents purchased at the Master's sale, are questioning the decree. Judge Bowman made no order affecting the interest of John W. Bowman, the Master did not make reference to John W. Bowman. Crum was in default, and the attorneys in the case on both sides consented to the decree and waived their rights to object to Judge Bowman hearing the case. Inasmuch as no party to the suit is questioning the decree by a motion in the original suit or otherwise, the decree should stand.

All exceptions are overruled, and judgment affirmed.

MESSRS. JUSTICES FRASER, COTHRAN and MARION concur.

MR. CHIEF JUSTICE GARY did not participate.