Arraham v. N.Y. Underwriters Ins. Co

• Decision Date: 12 April 1938
• Docket Number: No. 14665.,14665.
• Citation: 196 S.E. 531
• Court: South Carolina Supreme Court
• Parties: ARRAHAM. v. NEW YORK UNDERWRITERS INS. CO.

196 S.E. 531

ARRAHAM.

v.NEW YORK UNDERWRITERS INS. CO.

No. 14665.

Supreme Court of South Carolina.

April 12, 1938..

Appeal from Common Pleas Circuit Court of Darlington County; E. C. Dennis, Judge.

Action by Ida Abraham against the New York Underwriters Insurance Company, based upon a fire insurance policy. From an order confirming the report of a special referee dismissing the complaint except that the plaintiff have judgment for amount of two premiums paid by the plaintiff to the defendant, the plaintiff appeals.

Affirmed.

C. E. Gardner, of Darlington, for appellant.

Joseph L. Nettles, of Columbia, and Samuel Want, of Darlington, for respondent.

BONHAM, Justice.

This action has as its basis a fire insurance policy covering a house on a lot of a half acre in extent.

Appellant claimed the property in fee simple. She alleges in her complaint that at the time respondent issued this policy, it had no intention of performing its contract, but intended then to deceive and defraud her. The complaint sought recovery of the sum of $400, the face of the policy, and interest, and $2,500 punitive damages.

The defense was that appellant in applying for the policy represented herself to be the owner in fee simple of the property upon which the insured house stood; that such representation was not true; that the policy sued on contained the provision that it would be void if the insured shall not be the owner in fee simple of the land upon which the property insured is located. That appellant was not at the time when the policy was issued, nor at the time of the alleged fire, the owner in fee simple of said property, nor did she have any insurable interest in said property; hence the policy was void.

The matter was referred to the Honorable Chas. E. Sligh, judge of probate, as special referee, to take the testimony and decide all issues of law and of fact.

By his report, he upheld the contentions of the defendant and dismissed the complaint except that plaintiff have judgment for $16.50, the amount of the two premiums paid by the plaintiff to the defendant.

The case was heard by Hon. E. C. Dennis, judge of the Fourth circuit, on exceptions to the special referee's report, and the report was confirmed.

We think the circuit judge correctly summed up this case when he stated: "While various other issues are raised by the pleadings and arise from the testimony, it appears to me that the proper disposition of the question whether the plaintiff had any insurable interest in the insured property at the time of the fire is decisive of the whole case. Certainly, without an insurable interest, the plaintiff's claim cannot be supported on any theory that has been advanced in her behalf."

Any interest that appellant ever had in this property passed from her in a foreclosure action which was completed in 1925. On the back of the complaint in the foreclosure action, the following appears:

"Service of the within summons and complaint accepted this 8th day of September 1923.

"Willie, Abraham

"Ida Abraham.

"In the Presence of Julian T. Coggeshall."

It is the contention of appellant that this acceptance of service of the summons and complaint fails to comply with the requirements of section 440 of the Code andhas no legal effect, and that therefore the court obtained no jurisdiction over Ida Abraham as a defendant in the foreclosure action. This contention is based upon the fact that the acceptance of service fails to show the place where the acceptance was made.

The order appealed from deals with this question so admirably, we quote with approval therefrom:

"The plaintiff herein does not question the fact that she did actually accept service of the summons and complaint at the time indicated, or that she was afforded every opportunity as a defendant in the foreclosure action to litigate her rights therein; or that in any manner she was prejudiced by the omission of the statement of the place in the form of the acceptance.

"Assuming, without deciding, that the statute is applicable to the facts above stated, the decisions of our Supreme Court are clear to the effect that the omission of the statement of the place of the acceptance of service in the written record thereof does not affect the jurisdiction of the court or otherwise subject the foreclosure decree and the deed made thereunder to collateral attack. Middleton v. Stokes, 71 S.C. 17, 50 S. E. 539, 540; Lyles v. Haskell, 35 S.C. 391, 402, 14 S.E. 829.

"In the first of these two cases the court says specifically that the mode of proof of service is a mere question of practice, ' "and subordinate to the jurisdictional fact that such service was duly made." It is the actual service and the actual residence that determines the jurisdiction of the person, not the proof by which these conditions of jurisdiction are made to appear.'

"In the case of Coogler v. Crosby, 89 S.C. 508, at page 509, 72 S.E. 149, the court said: 'The entire absence of proof of service is not to be taken as conclusive evidence that no such service was made; on the contrary, the court before which the judgment roll is offered in evidence must presume that the court, on the hearing of the case in which the judgment was rendered, had before it proper proof of the service of the summons, or it would not have rendered the judgment.'

"In the same case (89 S.C. 508, at page 510, 72 S.E. 149) the court further says: "The only remedy of a party claiming not to have been served is by a direct proceeding to have the judgment set aside.'

"In the case of School District No. 9 v. Powles, 87 S.C. 552, 70 S.E. 315, the return of service on an officer of the school district failed to show that the person served was an officer of the district. This fundamental defect was held not to affect the jurisdiction of the court which rendered judgment against the corporation.

"In the case of American Agricultural Chemical Company v. Smith, 173 S.C. 158, 175 S.E. 275, 276, the question decided was whether the defendant had been sued in the proper county, but Chief Justice Blease, concurring in the affirmance of the judgment in the lower court, expressed an underlying principle involved in the present matter, as follows: 'The service as made on the defendant was a good one, under the authority of the cases of Metropolitan Life Insurance Company v. Still et al., 140 S.C. 18, 138 S.E. 401, and Dill-Ball Company v. Bailey, 103 S.C. 233, 87 S.E. 1010. In the case first cited, following the rule laid down in the other case, this court, refusing to upset the service of a summons and complaint, made somewhat irregularly, said the facts were "sufficient to show that the defendant was * * * fully informed of the pendency of the action, " and the facts shown answered "all the purposes of a summons." The proof here clearly established that within due time the defendant received notice of the pendency of the action from the service of the summons and complaint made upon his wife.'

"Even in cases...