Clemson Agricultural College of South Carolina v. Pickens

• Decision Date: 26 November 1894
• Citation: 20 S.E. 401,42 S.C. 511
• Parties: CLEMSON AGRICULTURAL COLLEGE OF SOUTH CAROLINA v. PICKENS et al.
• Court: South Carolina Supreme Court

20 S.E. 401

42 S.C. 511

CLEMSON AGRICULTURAL COLLEGE OF SOUTH CAROLINA v. PICKENS et al.

Supreme Court of South Carolina

November 26, 1894

Appeal from common pleas circuit court of Anderson county; I. D Witherspoon, Judge.

Action by Clemson Agricultural College of South Carolina against Samuel M. Pickens and Samuel McCrary to foreclose a mortgage. A judgment of sale was rendered in favor of plaintiff. Defendant Samuel M. Pickens moved to set aside the service of the summons, order of reference, master's report, and judgment of foreclosure and sale of the property. From an order overruling the motion, defendant Pickens appeals. Affirmed.

Tribble & Prince, for appellant.

O. W Buchanan, Atty. Gen., and J. E. Breazeale for respondent Clemson Agricultural College of South Carolina. Murray & Watkins, for respondent S. McCrary.

McIVER C.J.

On the 9th of February, 1894, the appellant, Pickens, served upon the attorneys for the plaintiff, and Samuel McCrary, who had become the purchaser at the sale hereinafter mentioned, a notice of a motion, together with the affidavits of said Pickens and R. W. Simpson, president of the board of trustees of the Clemson Agricultural College of South Carolina, and a certificate of the master for Anderson county, copies of which are set out in the case, "to set aside the supposed service of the summons, order of reference master's report, judgment of foreclosure, and sale of property thereunder," in the case of Clemson Agricultural College of South Carolina v. Samuel M. Pickens. This motion was heard by his honor, Judge Witherspoon, upon the papers thus served, together with the affidavits of H. H. Blease and G. P. Browne, copies of which are likewise set out in the case, on the 17th of February, 1894, who rendered his decree, in which he says: "While there are many irregularities patent upon the face of the proceedings, I think there is enough to show substantial compliance with the statute as to the service of nonresidents, and with the order of Judge Wallace reciting the facts necessary to give jurisdiction. I must hold that the court had jurisdiction of the person of defendant, and of the subject-matter of the action." He therefore rendered judgment refusing the motion, and from such judgment the defendant Pickens appeals, upon the grounds set out in the record, which need not be set out here, as the only question in the case is whether the record in the case of Clemson Agricultural College of South Carolina v. Samuel M. Pickens shows on its face that the court never acquired jurisdiction of the person of the defendant in that case, in which the judgment, as well as the proceedings thereunder, is impeached; for while there are many other irregularities disclosed by that record, they cannot affect the question which we are called upon to determine, except in so far as they show that the defendant would have had a good and valid defense if he had been allowed the opportunity to present the same, by being properly made a party to that action.

From that record, as set out in the case, it appears that, in a case entitled Clemson Agricultural College of South Carolina v. Samuel M. Pickens, a summons was filed in the clerk's office in Anderson county on the 9th of February, 1893, and lodged on the same day with the sheriff of that county, addressed to Samuel M. Pickens, calling upon him "to answer this complaint in this action, of which a copy is herewith served upon you." Upon this summons the sheriff endorsed the following return, dated 18th April, 1893: "The defendant is non est inventus in my county, but, am informed, resides now in Elberton, Georgia."

Next, we find a paper purporting to be a complaint in said action, but not signed by either plaintiff or its attorney, filed in the office of said clerk on the 9th of February, 1893, for the foreclosure of a mortgage of certain real estate in Anderson county, executed by defendant to one Thomas G. Clemson on the 20th of December, 1887, and given to secure the payment of a note made to said Clemson by the defendant on the 20th September, 1887, and payable on the 1st December, 1888, for the sum of $1,000. This so-called complaint alleges that said Clemson, by his last will and testament, duly admitted to probate, devised and bequeathed all his real and personal estate, including said note and mortgage, to the state of South Carolina, for the purpose of establishing an agricultural college; to the state of South Carolina, for the purpose of establishing an agricultural college; that the state duly accepted said devise and bequest, and duly complied with the conditions thereof, by the act of 27th December, 1889, "whereby said state became the owner of the within-named note and mortgage, which by said act was vested in the plaintiffs as herein mentioned"; that by said act the trustees of said college were incorporated as a body politic and corporate under the name and style of the Clemson Agricultural College of South Carolina, with power to sue and be sued; and the prayer was for a sale of the mortgaged premises, application of proceeds to the payment of said debt, and that execution be awarded against defendant for any deficiency. This complaint purports to be verified by the affidavit of W. T. C. Bates, described as "plaintiff in this action." We also find the following indorsement on the summons above mentioned: "Sheriff's Certificate of Service. Clemson Agricultural College of South Carolina, Plaintiff, vs. Saml. M. Pickens, Defendant. State of South Carolina, County of Anderson. I hereby certify that on the 20th day of April, A. D. 1893, at Anderson C. H., S. C., I deposited in the post-office, directed to Samuel M. Pickens, defendant above named, at Elberton, Ga., a copy of the summons and complaint in this action, and prepaid the postage thereon in full. Sworn to before me this 20th of April, 1893. Jno. C. Watkins, C. C. P. & G. S. [Signed] M. B. Gaines, Sheriff of Anderson County."

We next find the following statement made in the case: "In the clerk's office, among the papers, is a paper, not attached to any other paper, of which the following is a copy: 'South Carolina, Richland. Personally appeared W. T. C. Bates, who, being duly sworn, deposes and says that he is the state treasurer of the state of South Carolina, and that, as such treasurer, he is in charge of the evidence of indebtedness now claimed by the Clemson Agricultural College of South Carolina from Samuel M. Pickens, which said evidence of indebtedness came through a bequest of the late Thomas G. Clemson, deceased, to the state of South Carolina, for certain purposes, in said will of Thomas G. Clemson more particularly mentioned; that a cause of action exists against the said Samuel M. Pickens, in favor of said Clemson Agricultural College of South Carolina, and that the same is now due, as upon a reading of the complaint in the action will more fully appear; that the action is brought for a foreclosure of a mortgage, and for judgment for the amount due and costs, the barring of the equity of redemption, and the sale of the premises; that he is informed and the verily believes the said Samuel M. Pickens has left the said state, and his residence cannot, with due diligence, be found by your deponent, nor ascertained by him, and is not known by him, but is informed that he is in Elberton, Georgia. Wherefore, deponent prays that an order may be made, directing the service of the summons by the publication in a newspaper, as, in the opinion of the clerk, would be most likely to give him notice, once a week for six weeks."' This affidavit was sworn to in the usual form on the 17th of April, 1893.

It is further stated in the case that "on the same sheet of paper, but without any statement of a case pending in any court, appears the following: 'South Carolina, Anderson County. It appearing to me that a cause of action exists against the defendant Samuel M. Pickens, in favor of the Clemson Agricultural College of South Carolina, and that his residence, with reasonable diligence, cannot be found, and is unknown, but believed to be in Elberton, Georgia, and the proper showing having been made, and being satisfied by the allegations of the fact, I do, on motion of D. H. Townsend attorney general, for the plaintiff in said cause, order that the service of the summons be made upon the said Samuel M. Pickens by due advertisement and publication of the summons in the People's Advocate, a weekly newspaper published in the town of Anderson, for the term of six weeks, being inserted once a week for the time mentioned, and a copy of the summons and...