Bell v. Fludd

• Decision Date: 28 March 1888
• Citation: 5 S.E. 810,28 S.C. 313
• Parties: BELL et al. v. FLUDD et al.
• Court: South Carolina Supreme Court

5 S.E. 810

28 S.C. 313

BELL et al. v. FLUDD et al.

Supreme Court of South Carolina

March 28, 1888

Appeal from common pleas circuit court of Sumter county; J. B KERSHAW, Judge.

Moises & Lee, for appellants.

J. D Blanding and Jos. H. Earle, for respondents.

MoIVER J.

The plaintiff Mrs. Bell, as a judgment creditor of the late John B. Moore, brings this action for the following purposes, as stated by the circuit judge: (1) To have an account of the administration of the estate of said John B. Moore by the defendant Augustus Fludd, as his executor; (2) to have an account from the defendant Mrs. Anne Peyre Manning, who was the widow of said John B. Moore, of all property and money which came to her under the will of her said former husband (3) to set aside as fraudulent a judgment obtained by the defendant Mathew S. Moore, as trustee, against John B. Moore in his life-time, and all sales of property made thereunder "so far as the plaintiffs are affected thereby," and to require the defendants to account for the property sold under said judgment. Upon the testimony adduced at the hearing the circuit judge held that "the said judgment was in all respects bona fide, valid, and binding," and that the sales made thereunder "were free from fraud, fair, and open." He also held that, inasmuch as the balance due on the said judgment, and other judgments senior to that in favor of the plaintiff, "would absorb all that could be charged against the executor in any possible view of the testimony," the plaintiffs could not possibly be benefited by any further accounting by the executor, and he therefore refused to order such further accounting, and rendered judgment dismissing the complaint, with costs. From this judgment plaintiffs appeal, alleging error in three respects: "(1) In not ordering an account, by the defendants, of the estate of John B. Moore, deceased; (2) in dismissing the complaint; (3) in ordering the plaintiffs to pay the costs of the action."

In the argument here a question of jurisdiction has for the first time been raised, which must first be disposed of; for, if the court below had no jurisdiction of the case, then it is manifest that no question as to the merits is properly before us, and hence it would be not only premature, but improper for us to consider or determine any such question. The objection to the jurisdiction is based upon the ground that the action was commenced and was tried in the court of common pleas for the county of Sumter, when none of the defendants resided in that county at the time of the commencement of the action. The record shows that the action was commenced and the case was tried in the county of Sumter, and it also shows that, at the time the action was commenced, the defendants Augustus Fludd and Mrs. Manning resided in Orangeburg county, and the other defendant, Mathew S. Moore, resided in the state of New York. These being the facts, there can be no doubt that the court of common pleas for the county of Sumter had no jurisdiction. Section 146 of the Code is...