Crocker v. Allen

• Decision Date: 18 September 1891
• Citation: 13 S.E. 650,34 S.C. 452
• Parties: Crocker v. Allen.
• Court: South Carolina Supreme Court

13 S.E. 650

34 S.C. 452

Crocker

v.Allen.

Supreme Court of South Carolina.

Sept. 18, 1891.

Enforcement of Judgment—Equitable Relief.

1. A court of equity will not restrain the enforcement of a Judgment on the ground that defendant was never served with process, where the record shows no flaw or defect in the service, and where defendant does not state any facts imparting to the case some feature of equitable cognizance, such as fraud, accident, or miitake; defendant having a plain, speedy, and adequateremedy by a motion to vacate the judgment in the court, and in the action wherein it was rendered.

2. The mere fact that the judgment was recovered on the equity side of the court will not authorize the maintenance of the separate equitable action to set the judgment aside.

3. The fact that an injunction may be necessary to mr.kc the relief on the motion for the vacation of the judgmont effectual is not sufficient to give a court of equity jurisdiction, since that relief was always obtainable by a motion to stay the execution, even before the enactment of Gen. St. S3. C. § 2115, expressly conferring such power on a circuit judge in chambers.

Appeal from common pleas circuit court of Spartanburg county; Izlar, Judge.

Action by R.F.Crocker against Anna G. Allen to set aside a judgment. Suit dismissed, and plaintiff appeals. Affirmed. The complaint was as follows: "That heretofore, on the—— day of February, 1888, the defendant herein attempted to institute an action against her and a co-defendant, J. J. Lipscomb, by the service upon him and an attempted service upon her of a summons and complaint therein, which complaint alleged: (1) That on the 9th of March, 1886, they (the said defendants) executed to her their joint and several note where in they promised to pay her, twelve months after date, the sum of seven hundred dollars, with interest from date, at ten per cent, per annum, until paid, payable semi-annually, and, if not paid, to bear same rate as principal, and also to pay all costs and expenses, including ten per cent, attorney's commissions. (2) That the said defendant, R. F.Crocker, to secure the payment of the said note, executed to her on same day a mortgage upon two tracts of land in said county, known as ' Lots Nos. 5 and 6 of the estate of Gullie Crocker, deceased, '—lot No. 5 being bounded by lands of Madison Lee, C.

B. Hammett, Eliza Lee, and others, and No. 6 being bound by lands of J. W. Wilkins, Mrs. E. M. Wilkins, Mrs. E. M. Lipscomb, and others; containing together two hundred and forty-five acres, more or less, —and that the mortgage was duly recorded in Book 8, p. 140. (3) That the condition of the note and mortgage had been broken, and that there was due thereon the sum of seven hundred dollars, with interest from the 9th of September, 1887, and the further sum of seventy dollars attorney's commissions. Judgment was asked for foreclosure of mortgage, and execution for balance of debt remaining due after exhausting mortgaged lands. (4) That on the 3d day of April, 1888, a decree was rendered in said action by his honor, Judge W. H. Wallace, wherein he ordered that the said mortgaged premises, or so much thereof as should be necessary, be sold at public auction at Spartanburg

C. H., by the sheriff on sales-day in October, or some convenient sales-day thereafter, on terms of one-half cash and balance on credit of six months, and provided for the application of the proceeds of such sale in accordance with the allegation and prayer of the complaint, and rendering judgment against both defendants for any balance that might be found due, after exnausting the proceeds of such sale; also ordering that the said R. F. Crocker, and all persons claiming under her, be forever barred and foreclosed of all right, title, interest, and equity of redemption in the said premises so sold. (5) That the said decree was on the 4th day of April, 1888, duly filed with the clerk of court of said county, and on the 12th of same month the costs in said action were by him duly taxed and approved, and, along with the decree, entered and signed in judgment and recorded; all of which will more fully appear by reference to the judgment roll in said action. No. 9, i72. (6) That the said decree was rendered by default, notwithstanding it appears from said judgment roll that there was no affidavit of plaintiff or her attorney that no answer, demurrer, or notice of appearance had been served or received therein. (7) That plaintiff has never at anytime been served with a summons or complaint in said action, and' that the first information she had of her having been sued therein was the advertisement of her aforesaid land for sale under said decree. (8) That, in accordance with the terms of said decree, the sheriff has advertised the said premises for sale on sales-day of November next, and that they will be sold unless prevented by this court. (9) That the said decree and all proceedings thereunder are null and void as to this plaintiff. Wherefore plaintiff asks judgment (1) that the sheriff of said county, the defendant, her agents or servants, be restrained from advertising and selling said land, and from otherwise attempting to enforce said decree as against plaintiff; (2) that said decree be set aside and vacated as to her; (3) for the costs of this action, and such other relief as may be just."

Stanyarne Wilson, for appellant.

Bomar & Simpson, for respondent.

McIver, J. This was an action brought by the plaintiff herein to set aside a judgment previously obtained against her by the defendant herein, and to obtain an injunction to restrain the enforcement of the execution issued on said judgment, solely upon the ground that she was never served with the summons in the former action, and had no knowledge of any such proceedings against her until her land was advertised for sale under said execution. In her complaint—a copy of which is set out in the "case, " and which should be incorporated in the report of this case—she makes no allegation of fraud, and states no fact imparting an equitable feature to her case; and her demand for an injunction i3 not sufficient to give it such a character, for two reasons: (1) Because, as we have held in the case of Wesflake v. Farrow, 13 S. E. Rep. 469, (decided at the present term,) the demand for relief cannot be looked to as giving character to the cause of action; and (2) because she states no case entitling her to an injunction. Gillam v. Arnold, 32 S. C. 503, 11 S. E. Rep.331. The circuit judge held, among other things, which, under the view we take of the case, need not be stated, that the complaint failed to state facts sufficient to constitute a cause of action, and therefore rendered judgment dismissing the complaint. From this judgment plaintiff appeals upon the several grounds setout in the record; but as the fundamental question in the case, superseding all others, is whether the circuit judge erred in his ruling as above stated, we shall confine ourselves to that question.

In the case of Manufacturing Co. v. Thew, 5 S. C. 5, the action was brought to 3et aside a judgment confessed by the president of the plaintiff company to the defendant, upon the allegation that the judgment was null and void for three reasons, substantially: (1) Because the confession, not being under the corporate seal, was not legal or binding upon the plaintiff; (2) because the debt admitted by the plaintiff was not the legal obligation of the plaintiff corporation; (3) that the confession was signed by a person having no authority whatever to do so. It was held that these averments, standing by themselves, would neither support an action at law nor a bill in equity under the former procedure; but that the remedy was by motion in the court in which the judgment was rendered, if the same was insufficient in form, or for any reason void. In that case it is said: " An action under the Code of Procedure only lies where the subject-matter of such action furnished ground previous to the adoption of the Code for the maintenance of either an action at law or a bill in equity, " or in certain other cases not applicable to the present inquiry. "What rights shall be enforced, and what wrongs shall be redressed, by a civil action is not determined by the Code, except in the case of proceedings formerly taken by scre facias, quo warranto, " etc. "These matters are therefore to be determined according to the law as it stood previous to the adoption of the Code. In order, then, to ascertain whether a complaint under the Code sets forth a sufficient cause of action, except in the special cases above enumerated, the inquiry must be whether, under the former practice of this state, the matters set forth were sufficient either to support an action at law or a bill in equity. "

Now, as it was well settled that a court of equity would not entertain a case asking for relief where the party complaining had a plain, adequate, and complete remedy at law, the practical inquiry in this...