Bailey v. Cooley

• Decision Date: 14 November 1929
• Docket Number: 12763.
• Citation: 150 S.E. 473,153 S.C. 78
• Parties: BAILEY, Judge of Probate, et al. v. COOLEY et al.
• Court: South Carolina Supreme Court

150 S.E. 473

153 S.C. 78

BAILEY, Judge of Probate, et al. v. COOLEY et al.

No. 12763.

Supreme Court of South Carolina

November 14, 1929

Appeal from Common Pleas Circuit Court of Anderson County; M. L Bonham, Judge.

Action by H. E. Bailey, as Judge of Probate, and others, against H Vance G. Cooley and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

The order of Judge Bonham in the lower court is as follows:

"The complaint in this action alleges that John B. King plaintiff, was adjudged non compos mentis March 25, 1921 that W. P. Nicholson, then judge of probate, on proper proceedings appointed H. Vance G. Cooley, brother-in-law of King, his guardian and committee, who entered into bond to the judge of probate and his successors in office, in the sum of $10,000, with the United States Fidelity & Guaranty Company as surety; that the plaintiff H. E. Bailey succeeded W. P. Nicholson as judge of probate, and is now holding that office; that on the 26th day of April, 1924, H. Vance G. Cooley rendered what purported to be a final accounting of his administration as guardian and committee as aforesaid, and was discharged as such; that at the same time, and before H. Vance G. Cooley was discharged, J. B. King was requested to sign and did sign an acquittance and receipt to Cooley, but that he had not had an opportunity to examine and digest the statement for settlement, and was not legally qualified to execute the receipt; that since the discharge the plaintiff King had regained his mental poise and health, and has discovered many irregularities in the said statement of fraudulent omissions and misrepresentation; that in procuring said settlement and discharge the said H. Vance G. Cooley imposed upon his ward, who because of his confidence in his guardian and committee, and his inability to property protect himself, was unable to detect the fraud being perpetrated upon him. He prays that Cooley be required to account in this court, and that he have judgment on the bond for such sum as shall be found due.

"In due time defendants gave notice that on the call of the case for trial they would interpose a demurrer to the complaint on the grounds that it appears on the face of the complaint '(1) that this court has no jurisdiction of the subject of the action, for the reason that the plaintiff King and the defendant Cooley have submitted themselves and the subject of this action to the jurisdiction of the probate court, which has adjudged the rights of the respective parties, who are bound by the judgment of that court, and cannot avoid it, except by proper proceedings in the court in which it was rendered; (2) that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action, in that, while it appears that the rights of the parties have been adjudicated, it does not appear that the court adjudged any breach of duty against the guardian and committee, but, on the contrary, granted him a full discharge.'

"By consent of counsel the demurrer came before me at chambers. A preliminary question is made by plaintiff's counsel that the demurrer cannot be considered, because it does not contain the certificate required by rule 18 of the circuit court, to the effect that the demurrer is meritorious, and is not intended for delay. Counsel for the defendants counters by saying that it is not a written demurrer, but is a notice of intention to demur orally on the call of the case for trial, and that such notice does not need to be accompanied by the certificate prescribed by rule 18.

"It is not necessary to cite authorities in support of the statement that the jurisdiction of the court may be challenged at any stage of the progress of the case, even on appeal to the Supreme Court, even though it has not been previously made.

"' The defendant may demur to the complaint when it shall appear upon the face thereof, either: (1)That the court has no jurisdiction of the person of the defendant or the subject of the action.' Code Civ. Proc. 1922, § 401. ""'Nothing' contained 'in this chapter shall be construed to impair the right of any party to object to the jurisdiction of any court or tribunal at any time and place in any manner now allowed by law and the practice in this state, when such objection is based upon the lack of jurisdiction of the subject matter of the case or proceeding.' Code Civ. Proc. 1922, § 409.

"The contention of defendants' counsel seems to be sustained by the opinion of Mr.

Justice McGowan in Elliott v. Pollitzer, 24 S.C. 85. It is true that this is the minority opinion, but the differences do not include this utterance. 'There are essential differences between a written and verbal demurrer. The former is a pleading and makes an issue. It must be filed within a prescribed time after service, and be accompanied by a certificate of the counsel filing it, that it is meritorious, and not intended merely for delay (see rule 18 of the circuit court), while "a verbal demurrer" has not thrown around if any such safeguards. It is simply a motion at the trial without notice, and being easily made, may be entirely without merit, and only intended for the purpose of delay.'

"It was not necessary for the defendants' counsel to give notice of his intention to attack the jurisdiction of the court. His election to do so does not make of his notice a written demurrer, which requires the certificate prescribed by rule 18. If, however, this written notice can be held to be a demurrer, it would be competent for the court to allow the certificate to be appended to it now, and the defendants may do so, if they be so advised.

"The cardinal question involved in this issue is whether this action can be maintained in the court of common pleas, the court of probate having taken jurisdiction of the subject, and the plaintiff and defendant having submitted themselves thereto, and that Court having rendered judgment, may that judgment be then attacked?

"That the judgment of a court of competent jurisdiction, regular on its face, may not be attacked by a collateral proceeding, is too well established to need to be fortified by the quotation of authorities. That the court of probate is a court of record, and its judgments rendered within the compass of its jurisdiction fixed by statute, and regular on their face, are binding on the parties thereto, and are entitled to the recognition and support of all courts, is equally well established and may not be attacked collaterally.

"Plaintiffs' counsel relies with confidence on the able opinion of Mr. Justice Marion in the case of Beatty v. National Surety Co., 132 S.C. 45, 128 S.E. 40, 43. That opinion lucidly maintains the proposition that courts of probate and of common pleas have concurrent jurisdiction, in certain circumstances, to call fiduciaries to account. But it contains this statement, strikingly applicable to our case: 'Thus in an action for an accounting against an administrator the court of common pleas has concurrent jurisdiction with the court of probate.' Epperson v. Jackson, 83 S.C. 157, 65 S.E. 217. 'If, however, at the time of the commencement of an action in the court of common pleas there is an action or proceeding pending in the court of probate, which properly embraces the subject-matter of the inquiry sought to be conducted in the court of common pleas, then, under the principle of comity the court of common pleas will decline to entertain jurisdiction of such inquiry.'

"Upon the subject of collateral impeachment of the judgment of the probate court the opinion in that case holds: 'It does not appear, and does not seem to be contended, that the plaintiff was a party to the proceeding in the probate court which culminated in *** letters dismissory to the administrator. Obviously, therefore, the rule against collateral attack as applied in the case cited by appellant ( Phillips v. Hill, 116 S.C. 218, 107 S.E. 909) has no application."

" In the case at bar it appears on the face of the complaint that the plaintiff was a party to the proceeding which culminated in the judgment of the court settling the accounts between the parties, and in the order discharging the guardian and committee from his offices. In my opinion the matter is set at rest by the case of Phillips v. Hill, supra. This was an action in the court of common pleas by a former guardian of an infant against his successor in office to recover certain moneys which he claims should have been allowed him as credits by the probate court in a final settlement in that court when he turned over the guardianship to the defendant. There was a demurrer to the complaint on the ground 'that this court has no jurisdiction of the subject-matter of this action.' (2) 'That the complaint does not state facts sufficient to constitute a cause of action.'

"The decree of the circuit judge (Judge Townsend) which was adopted by the Supreme Court as the judgment of that court is, in part, as follows:

"'The demurrer to the jurisdiction of this court was properly overruled, under the authority of Epperson v. Jackson, 83 S.C. 162, 65 S.E. 217. But the decision in that case, pronounced by the present Chief Justice, requires that the demurrer on the ground of failure to state facts sufficient to constitute a cause of action should be sustained, for the reason that any error on the part of the probate court in disallowing credits in the final settlement should have been reviewed on appeal. As there said by the Chief Justice: "There was no appeal from said order, nor can it be attacked in a collateral proceeding."

"'Plaintiff's claim now to be allowed the credits is based on the ground that he was ignorant of his right to them, and

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