Bose v. Bose
| Court | United States State Supreme Court of South Carolina |
| Writing for the Court | WOODS |
| Citation | 72 S.E. 645,90 S.C. 87 |
| Decision Date | 20 November 1911 |
| Parties | DU BOSE v. DU BOSE et al. |
72 S.E. 645
90 S.C. 87
DU BOSE
v.
DU BOSE et al.
Supreme Court of South Carolina.
Nov. 20, 1911.
Process (§ 98*)—Service—Publication—Order for Publication — Signature by Clerk.
An affidavit and order for publication of summons were folded together, and were in the usual form, except that the clerk neglected to subscribe the order until after the publication. He, however, indorsed the character of the paper and the date of filing on the back thereof, to which he signed his name. Held, that such indorsement did not constitute a signing of the order, and, there being no signature thereon by the clerk prior to publication, the service was void.
[Ed. Note.—For other cases, see Process, Cent. Dig. §§ 121-124; Dec. Dig. § 98.*]
Appeal from Common Pleas Circuit Court of Abbeville County; R. C. Watts, Judge.
"To be officially reported."
Action by Porter Du Bose against Major Du Bose and others. Judgment for plaintiff, and defendants appeal. Reversed.
J. Frank Clinkscales, for appellants.
Wm.N. Graydon and J. M. Nickles, for respondent.
WOODS, J. The plaintiff brings this action for the purpose of foreclosing five mortgages covering four tracts of land situated in Abbeville county. Four of these mortgages were made by Major Du Bose, defendant herein, the plaintiff, his brother, and William Du Bose, their father, as co-mortgagors, and were later assigned to the plaintiff, Porter Du Bose. The fifth mortgage was executed by Major Du Bose in favor of the plaintiff. The defendants Boy-kin Tate and Janie Tate are joined in the cause as the heirs and distributees of Sara Du Bose, widow of William Du Bose, deceased, and R. F. Morris is made defendant as a junior mortgagee. The remaining defendants are the heirs of William Du Bose. The defendants Major Du Bose and R. F. Morris live in this state; the remaining defendants reside in Georgia. After the filing of the summons and complaint and a lis pendens, plaintiff applied to the clerk of the court for Abbeville county for an order allowing service to be made by publication upon the nonresident defendants. The affidavit contained the usual allegations, and the order of publication was in the usual form, except that the clerk neglected to sign it at the foot. The two papers, however, were folded together, and on the back of the order the clerk made this indorsement: "State of South Carolina, County of Abbeville. Court of Common Pleas. Porter Du Bose, Plaintiff, v. Major Du Bose et al., Defendants. Affidavit and order of...
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State v. Covert, No. 4071.
...foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant." Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial Page 486 or ju......
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Caldwell v. Wiquist, No. 5105.
...was void when the clerk signed the order for publication on the front after the service by publication was effectuated. Du Bose v. Du Bose, 90 S.C. 87, 89, 72 S.E. 645, 646 (1911). The Du Bose court noted the “rule that the statutory requirements as to constructive service by publication mu......
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State v. Henderson, 2006-UP-037
...foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant.” Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial officer, or ju......
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State v. Covert, No. 26632.
...that it is a validly issued warrant. Without the signature, it is merely an "unfinished paper." Davis, supra; see also DuBose v. DuBose, 90 S.C. 87, 72 S.E. 645 (1911) ("But it has been decided [in Davis] that, when an officer is performing the ministerial duty of issuing a paper on complia......
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State v. Covert, 4071.
...foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant." Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial Page 486 or ju......
-
Caldwell v. Wiquist, 5105.
...was void when the clerk signed the order for publication on the front after the service by publication was effectuated. Du Bose v. Du Bose, 90 S.C. 87, 89, 72 S.E. 645, 646 (1911). The Du Bose court noted the “rule that the statutory requirements as to constructive service by publication mu......
-
State v. Henderson, 2006-UP-037
...foot as he intended to do, and because he did not intend the indorsement on the back as his signature of the warrant.” Du Bose v. Du Bose, 90 S.C. 87, 90, 72 S.E. 645, 646 (1911). Therefore, a warrant is not issued until signed by an appropriate magistrate, municipal judicial officer, or ju......
-
State v. Covert, 26632.
...that it is a validly issued warrant. Without the signature, it is merely an "unfinished paper." Davis, supra; see also DuBose v. DuBose, 90 S.C. 87, 72 S.E. 645 (1911) ("But it has been decided [in Davis] that, when an officer is performing the ministerial duty of issuing a paper on complia......