Du Bose v. Du Bose

• Decision Date: 20 November 1911
• Citation: 72 S.E. 645,90 S.C. 87
• Parties: DU BOSE v. DU BOSE et al.
• Court: South Carolina Supreme Court

72 S.E. 645

90 S.C. 87

DU BOSE v. DU BOSE et al.

Supreme Court of South Carolina

November 20, 1911

Appeal from Common Pleas Circuit Court of Abbeville County; R. C Watts, Judge.

"To be officially reported."

Action by Porter Du Bose against Major Du Bose and others. Judgment for plaintiff, and defendants appeal. Reversed.

J Frank Clinkscales, for appellants. Wm. N. Graydon and J. M Nickles, for respondent.

WOODS J.

The plaintiff brings this action for the purpose of foreclosing five mortgages covering four tracts of land situated in Abbeville county. Four of these mortgages were made by Major Du Bose, defendant herein, the plaintiff, his brother, and William Du Bose, their father, as comortgagors and were later assigned to the plaintiff, Porter Du Bose. The fifth mortgage was executed by Major Du Bose in favor of the plaintiff. The defendants Boykin Tate and Janie Tare are joined in the cause as the heirs and distributees of Sara Du Bose, widow of William Du Bose, deceased, and R. F. Morris is made defendant as a junior mortgagee. The remaining defendants are the heirs of William Du Bose. The defendants Major Du Bose and R. F. Morris live in this state; the remaining defendants reside in Georgia. After the filing of the summons and complaint and a lis pendens, plaintiff applied to the clerk of the court for Abbeville county for an order allowing service to be made by publication upon the nonresident defendants. The affidavit contained the usual allegations, and the order of publication was in the usual form, except that the clerk neglected to sign it at the foot. The two papers, however, were folded together, and on the back of the order the clerk made this indorsement: "State of South Carolina, County of Abbeville. Court of Common Pleas. Porter Du Bose, Plaintiff, v. Major Du Bose et al., Defendants. Affidavit and order of publication. Wm. N. Graydon and J. M. Nickles, plaintiff's Attorneys. Filed December 16, 1910, J. L. Perrin, C. C. C. P." The cause was referred to the master to take testimony, and on March 10, 1911, a decree of Hon. R. C. Watts, circuit judge, was filed, affirming the report of the master, and ordering a sale of the various tracts of land and the application of the proceeds to the satisfaction of the mortgages.

On March 25, 1911, notice was served on plaintiff's attorneys, by J. Frank Clinkscales, Esq., representing the nonresident defendants, of a motion to set aside the judgment entered in the case, on the ground that these defendants "have not been properly served with summons in the above- entitled action." The notice was accompanied by an affidavit of J. L. Perrin, clerk of court stating that the order for publication of the summons had been signed by him on March 23, 1911. Affidavits were also filed from Elizabeth Tate and Jake Du Bose, two of the nonresident defendants, in which they deny that they have ever received notice of the bringing of the action, and allege further that they have a good and valid defense to the suit. Judge Watts filed an order, on March 31, 1911, refusing to set aside the summons and open the...