Dill-Ball Co. v. Bailey

• Decision Date: 28 February 1916
• Docket Number: 9275.
• Citation: 87 S.E. 1010,103 S.C. 233
• Parties: DILL-BALL CO. v. BAILEY.
• Court: South Carolina Supreme Court

87 S.E. 1010

103 S.C. 233

DILL-BALL CO. v. BAILEY.

No. 9275.

Supreme Court of South Carolina

February 28, 1916

Appeal from Common Pleas Circuit Court of Charleston County; Frank B. Gary, Judge.

Action by the Dill-Ball Company, a corporation, against Alonzo S Bailey, in which the defendant moved to vacate a default judgment. From an order overruling the motion and vacating the rule to show cause and the restraining order therein, the defendant appeals. Affirmed.

The order of Judge F. B. Gary, referred to below, is a follows:

This is a petition in the above-entitled case asking the court to vacate a default judgment rendered in said case on the sole ground that no summons or other process was ever served upon the defendant in the above-entitled suit, and that said default judgment was obtained against the defendant without his ever having been brought before the court. The petition is not addressed to the discretion of the court, but is the assertion of a right of the defendant, to wit, to have a judgment alleged to have been taken against him without the court acquiring jurisdiction of him. This is the right of the defendant if the facts bear out his allegations.

The authorities show that a motion to be relieved from a judgment, taken against a party through his mistake, etc stands upon an entirely different footing from a motion to set aside a judgment on the ground that the summons was not served on the defendant, so as to make him a party to the action. The first of these motions is based upon the conduct of the party making the motion, and is addressed to the discretion of the court, while the other is merely the assertion of a legal right founded upon the failure of the adverse party to comply with the requirements of the law, and is not dependent upon the discretion of the court.

Section 195 of the Code is inapplicable to the second of said motions, which the court has authority to grant, under the general power of the court, to relieve against its judgments on the ground that they are void or voidable. Life Ins Co. v. Mobley, 90 S.C. 562, 73 S.E. 1032.

There is therefore before me but one question, viz.: Was the summons served on the defendant so as to make him a party to the action? If not, it is the right of the defendant to have the judgment entered against the defendant in such action vacated when the want of jurisdiction appears upon the face of the record or shall be made to appear by evidence de hors the original record. The original summons has the following certificate upon it: "[Title of the Case.] State of South Carolina, County of Charleston. I hereby certify that on the 12th day of November, A. D. 1913 at Edisto Island, I served on the above-named Alonzo S. Bailey the summons and complaint in this action, by delivering copies thereof to Alonzo S. Bailey personally, and leaving the same with him. J. Elmore Martin, S.C. C. [ Seal.]" The judgment entered was on the face of the record entirely regular.

Upon hearing of this motion there was an issue as to the service or nonservice of the summons upon the defendant, the certificate of the sheriff asserting that the service was made, and the affidavit of the defendant asserting that no summons was served upon him. The court, not being as fully informed as to the facts and circumstances concerning the alleged service as it should be in order that it might make a satisfactory decision, referred the matter to Frank K. Myers Esq., one of the masters for Charleston county, to take testimony and report forthwith to me his conclusions as to the service of the summons. In due time the

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