Cosgrove v. Butler
| Citation | 1 S.C. 241 |
| Parties | JAMES COSGROVE, PLAINTIFF IN ERROR, v. RICHARD M. BUTLER, DEFENDANT IN ERROR. |
| Decision Date | 21 December 1869 |
| Court | United States State Supreme Court of South Carolina |
Action of trover commenced in December, 1865, on a cause of action which arose between December 19, 1860, and April 29, 1865. Action tried January, 1868, and verdict for plaintiff. Defendant appealed to Court Appeals, and appeal dismissed. Neither in Court below, nor in Court of Appeals, did defendant claim the benefit of Military Orders, Nos. 10 and 164, staying proceedings in such cases; but, in October 1868, after said orders had been abrogated, he applied to have the judgment vacated, on the ground that, under the operation of those orders, it was void. Application refused.
A Justice of the Supreme Court has no authority, at Chambers to set aside a judgment of the Court of Common Pleas- semble .
The Military Orders, known as Orders Nos. 10 and 164, were mere regulations of the procedure of the Courts-staying their action in a certain class of cases-and did not operate to oust them of their jurisdiction.
A judgment will not be vacated for a mere irregularity, which does not affect the justice of the case, and of which the party could have availed himself, but did not do so until judgment was rendered against him.
A judgment which could have been avoided for irregularity under Military Orders, Nos. 10 and 164, will not be set aside after those orders have been abrogated.
BEFORE WILLARD, A. J., AT CHAMBERS, CHARLESTON, OCTOBER, 1868.
The facts of this case are stated in the judgment of the Supreme Court.
Corbin , for plaintiff in error.
Phillips , contra.
C. D MELTON, Esq., sitting in the case, by appointment of His Excellency the Governor.
This case comes up on writ of error to the Court of Common Pleas for Charleston, and presents this state of facts:
James Cosgrove, (plaintiff in error,) in December, 1865, was sued in an action of trover, in the Court of Common Pleas for Charleston, by Richard M. Butler, (defendant in error,) and at January Term, 1868, of that Court, the case was tried and a verdict rendered for the plaintiff in the action. From this verdict an appeal was taken, by the defendant, to the Court of Appeals, and a motion was there made for a new trial, which was refused.
The cause of action arose between the 19th December, 1860, and the 29th April, 1865, and was, therefore, within the operation of the General Orders, Numbers 10 and 164, from Headquarters, Second Military District, dated, respectively, April 11 and December 31, 1867, which stayed proceedings on causes of action which arose within that period. But it appears, from the brief now submitted, that neither on the trial below nor in the Court of Appeals was there interposed, by plea or otherwise, any objection to the exercise, by the Court, of its jurisdiction of the cause.
In October, 1868, after the appeal had been dismissed, the defendant in the action, by petition, impleaded the plaintiff, before Mr. Associate Justice Willard, at Chambers, and prayed that the judgment rendered against him should be vacated, for the reason that, the cause of action being within the operation of the General Orders, Numbers 10 and 164, jurisdiction thereof was thereby expressly prohibited to the Court, and its judgment was, therefore, " utterly null and void."
The relief prayed for by the petition was refused by Mr. Justice Willard, and the case is now here for review.
It is not perceived where lies the authority of a Justice of the Supreme Court, on a motion at Chambers, to grant the relief prayed for. Such power is not, in terms, or by any necessary implication, conferred by the Act of 1868, which defines his special powers.
But, regarding the petition as a proper motion before a proper tribunal, the error of the ruling does not appear.
It is conceded to the argument of the counsel for the plaintiff in error, that if a Court shall assume to adjudge a cause of which the law does not give it cognizance, its judgment is a nullity; that such want of jurisdiction cannot be cured by consent of parties, much less by the mere failure to object; that a party aggrieved by such a judgment may have it vacated, notwithstanding he may have pleaded to the action; and that of this right he may avail himself at any stage of the cause, before or after judgment.
...
To continue reading
Request your trial