Coogler v. Crosby

• Decision Date: 02 October 1911
• Parties: COOGLER et al. v. CROSBY et al.
• Court: South Carolina Supreme Court

72 S.E. 149

89 S.C. 508

COOGLER et al. v. CROSBY et al.

Supreme Court of South Carolina

October 2, 1911

Appeal from Common Pleas Circuit Court of Fairfield County.

"To be officially reported."

Action by Anna Coogler and others against Sallie Crosby and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

A. D Martin and Graham & Sturkie, for appellants. A. S. & W. D Douglas, for respondents.

WOODS J.

The main question involved in this action for partition is whether the circuit court ruled correctly in holding that the plaintiffs were bound by a former judgment and sale of the land in pursuance thereof, under which the defendants, who are respondents in the appeal, claim.

The alleged fatal objection to the validity of the former judgment and to its admission in evidence was that there was not found in the record the requisite proof of service on some of the plaintiffs, who were then infants. The record did not contain the affidavit or official certificate of service required by law; but it does contain petitions, duly signed for the appointment of guardians ad litem for the infants reciting the service on the infants, the answer of the guardians ad litem on behalf of the infants, and the judgment of the court of common pleas, directing a sale of the land, dated September 23, 1880. "All presumptions must be indulged in favor of the jurisdiction of a court of general jurisdiction. To avoid such a judgment for want of jurisdiction, the jurisdictional defects must appear affirmatively on the record." Ex parte Gray, 48 S.C. 566, 26 S.E. 786. 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. Ex parte Pearson, 79 S.C. 302, 60 S.E. 706; Voorhees v. Jackson, 10 Pet. 449, 9 L.Ed. 490.

In such case the judgment is not void on its face and the only remedy of a party claiming not to have been served is by a direct proceeding to have the judgment set aside. The rule on the subject is thus well stated by Mr. Justice Jones, in Clark v. Neves, 76 S.C. 484, 57 S.E. 614, 12 L. R. A. (N. S.) 298: "When it appears affirmatively on the face of the record that an infant has not been served with...