National Exch. Bank v. Stelling
| Decision Date | 19 July 1889 |
| Citation | 9 S.E. 1028,31 S.C. 360 |
| Parties | NATIONAL EXCH. BANK v. STELLING et al. COMMERCIAL BANK v. SAME. AUGUSTA SAV. BANK v. SAME. |
| Court | South Carolina Supreme Court |
Appeals from common pleas circuit court of Aiken county; NORTON Judge.
Wm. T Gary, Aldrich & Ashley, and M. P. Foster, for appellants.
Henderson Bros. and Croft & Chaffee, for respondents.
These three cases, being practically identical in their facts and circumstances and in the legal principles applicable, were heard, and will be considered, together. In each of the cases the plaintiffs are foreign corporations, having their places of business in the state of Georgia, and the defendants are citizens of that state, but the actions were commenced in the court of common pleas for the county of Aiken in the state of South Carolina. The foundation of the actions in the two cases first named are unsatisfied judgments recovered in the state of Georgia by the plaintiffs therein against the defendant Stelling, and in the last-named case the action is based upon certain notes of the defendant Stelling in favour of the plaintiff therein. The complaints, after alleging these causes of action in the usual form, proceeded to allege that the defendant Stelling some time before the recovery of said judgments made an assignment of all of his property in the state of Georgia, preferring certain of his creditors other than these plaintiffs, whereby the plaintiffs have been unable to realize there anything upon their claims, the assigned estate being insufficient to reach the same; that on the 15th of February, 1884, the defendant Stelling, being then insolvent, and with intent to give preference to his co-defendant, Bredenberg, for money which he then owed said Bredenberg, in fraud of the rights of the plaintiff, and against the provisions of chapter 72 of the General Statutes of this state, conveyed to the said Bredenberg certain tracts of land, describing the same, situate in the counties of Edgefield and Aiken in this state, the same being all of the property in this state then owned by said Stelling; that the defendant Bredenberg, having reasonable cause to believe that said Stelling was insolvent, accepted the conveyance of said lands in payment of the debt then due him by said Stelling thereby intending to be preferred as a creditor of said Stelling, and also to defraud the plaintiffs of their debts against said Stelling, in violation of the provisions of the seventy-second chapter of the General Statutes of this state; that the defendant Stelling owns no other property out of which the plaintiffs can recover their debts; that the said Stelling was insolvent, and that fact was well known to said Bredenberg at the time of the conveyance to him as aforesaid, which was made for the purpose of delaying, hindering, and defrauding the claims of these plaintiffs. Wherefore the plaintiffs demand judgment against the defendants as follows: (1) For judgment against Stelling for the amounts due by him to the plaintiffs, respectively. (2) That the conveyance to Bredenberg be declared fraudulent and set aside. (3) For such other relief as may be just and equitable. An order that the summons be served by publication was granted by the master upon an affidavit to the following effect: (1) That a cause of action exists in favor of the plaintiffs against the defendants, stating the same in general terms, and referring to the complaint for a more full statement. (2) That defendants are non-residents of this state, but reside in the city of Augusta, Georgia, and that they cannot, after due diligence, be found in this state. (3) That defendant Stelling has property in this state.
It is stated in the "case" "that no publication of the summons was actually made in a newspaper, but the summons in each case was actually served personally upon the defendants, F. H. Stelling and J. J. Bredenberg, in the city of Augusta, Georgia." It appears, however, that the proof of service of the summons was made by an affidavit taken before a person styling himself "Notary Public, Richmond County, Georgia," but there was no certificate then appended thereto from the clerk of a court of record that such person is such notary, as required by the act of 1884, (18 St. 745,) though such certificate has subsequently been obtained, since the service of the notice of motion to set aside the service of the summons, and is set out in the "case." It also appears in the "case," "that F. H. Stelling, in his sworn affidavits, used at the hearing before Judge NORTON, admitted that he had been personally served with the summons and complaint in each case at Augusta, Georgia, and that he was a resident of said city at time of service." At the same time warrants of attachment were applied for and obtained from the clerk in each of the three cases, based upon affidavits to the following effect: (1) That Stelling is indebted to the plaintiffs in the amounts stated on the several causes of action; (2) that Stelling is not a resident of this state; (3) that the plaintiffs have commenced action upon the several causes of action. The undertakings required by section 251 of the Code, copies of which are set out in the "case," are in the form of ordinary bonds, but are not signed by the plaintiffs in either case, though the copy in the case first named, as set out in the "case," does appear to be signed by "THE NATIONAL EXCHANGE BANK, by ALFRED BAKER, President," but it is conceded that this was written in pencil by one of the counsel, and is not claimed to be an execution of the bond by the bank. All these undertakings or bonds have been treated in the argument, and must be so regarded, as not executed by the plaintiffs themselves, or by any duly-authorized agent, but simply as bonds or undertakings executed by third persons, that the plaintiffs in each of the cases, respectively, "shall pay or cause to be paid to the said F. H. Stelling, his certain attorneys, etc., *** all costs that may be awarded to the said defendant, and all damages which the said defendant may sustain by reason of the attachment about to be issued," etc. These bonds, as set out in the case, contain no indorsement showing that they had been accepted and approved by the clerk and filed by him, but we find in the "case" a certificate of the clerk in the following words: "I hereby certify that I had approved of sufficiency of the bonds or undertakings in each of the foregoing cases before I issued the writs of attachment therein." The defendant Stelling, appearing for this purpose, only gave notice of two motions--(1) to set aside the service of the summons; (2) to discharge the attachments upon the several grounds stated in the notice. These motions not having been heard at the next succeeding term of the court, the plaintiffs applied for and obtained judgments by default against Stelling, (his co-defendant, Bredenberg, having put in an answer,) and, upon a return of nulla bona of the executions issued to enforce said judgments, gave notices of motions for leave to file supplemental complaints setting forth the recovery of such judgments, together with the executions returned nulla bona in addition to what appeared in the original complaints. Thereupon defendant Stelling gave notice of a motion to set aside the judgments obtained by default as improvidently granted. These four motions were heard by his honor Judge NORTON, who rendered judgment refusing the motions of Stelling to set aside the service of the summons and to discharge the attachments, granting his motion to set aside the judgments obtained against him by default, with leave to answer, and refusing the motion of plaintiffs for leave to file supplemental complaints. From this judgment the defendant Stelling alone appeals, imputing error to the circuit judge in refusing his motions to set aside the service of the summons and to discharge the attachments, upon the several grounds hereinafter considered. There being no appeal from any other portion of the judgment, it will, as a matter of course, stand affirmed in all other respects.
We will first consider his honor's ruling as to the sufficiency of the service of the summons. The Code, § 156, provides that where the person on whom the service of the summons is to be made cannot, after due diligence, be found within the state and that fact appears by affidavit to the satisfaction of the master, or other officer therein named, and it in like manner appears that a cause of action exists against such person, or that he is a proper party to an action relating to real property in this state, such master or other officer may grant an order that service may be made by publication in either of the following cases: "(3) Where he is not a resident of this state, but has property therein, and the court has jurisdiction of the subject of the action." And it further provides that "where publication is ordered, personal service of the summons out of the state is equivalent to publication and deposit in the post-office." It seems to us quite clear that every fact required was made to appear by the affidavit submitted upon the application for the order of publication,--that the defendant is not a resident of this state, and cannot, after due diligence, be found therein; that a cause of action exists against him; and that he is a proper party to the action, which relates to real property in this state, --and it is equally clear that these are cases in which the service by publication is authorized, for the defendant is a non-resident, and if the allegations of the complaint are true, of which we must assume that the officer granting the order was satisfied, it is quite certain that defendant has property in this state, and that the court has jurisdiction of...
To continue reading
Request your trial