Foster v. Crawford

• Citation: 36 S.E. 5,57 S.C. 551
• Parties: FOSTER et al. v. CRAWFORD. SAME v. HEATH et al. SAME v. CUNNINGHAM. SAME v. POOVEY. SAME. v. LANCASTER COTTON MILLS. SAME v. SPRINGS (two cases). SAME v. PORTER. SAME v. McMANUS. SAME v. JONES. SAME v. CULP.
• Decision Date: 30 April 1900
• Court: United States State Supreme Court of South Carolina

36 S.E. 5

57 S.C. 551

FOSTER et al. v. CRAWFORD.

SAME v. HEATH et al.

SAME v. CUNNINGHAM.

SAME v. POOVEY.

SAME. v. LANCASTER COTTON MILLS.

SAME v. SPRINGS (two cases).

SAME v. PORTER.

SAME v. McMANUS.

SAME v. JONES.

SAME v. CULP.

Supreme Court of South Carolina

April 30, 1900

Appeal from common pleas circuit court of Lancaster county; O. W Buchanan, Judge.

Actions by Gertrude Foster and others against R. L. Crawford, Heath Springs & Co., W. J. Cunningham, G. W. Poovey, the Lancaster Cotton Mills, Leroy Springs, Grace W. Springs, W. S. Lee Porter, R. C. McManus, Ira B. Jones, and Abram T. Culp. The cases were heard together. Judgment for defendants, and plaintiffs appeal in each case. Affirmed.

The order of Judge Buchanan, and his reasons for passing the same, are substantially as follows:

"There is no dispute as to the facts in their case, the only question in the case submitted to the court being a question of law. It is conceded that, if the decree for the sale of the lands of the Foster estate, made in the case of Charlotte R. Foster v. Eloise Foster et al., was not void then the defendant has legal title to the land here in question. But it is claimed by plaintiffs that said decree was and is void as to plaintiffs in this action; the claim being that said plaintiffs here were never properly served with process in said former action, in which they were named as defendants. The question is whether the record in said action of C. R. Foster v. Eloise Foster et al. shows that the infant defendants there, who are plaintiffs in this action, were served with the summons, so as to give the court jurisdiction of the persons and property of said infant defendants in said former action. The claim of the plaintiffs in this action is that, in order to obtain jurisdiction over them as defendants in said former action. The claim of the plaintiffs in this action is that, in order to obtain jurisdiction over them as defendants in said former action, they being infants under fourteen years of age, it must appear from the record that the officer serving the summons therein delivered the same to said infant defendants therein, and also to C. R. Foster, the mother of said infant defendants, and the person with whom they resided; she being also the plaintiff in said action. The plaintiffs claim that no such service by formal delivery to the said C. R. Foster for the said infants was made; that her admission, acknowledgment, and acceptance of service as the mother of said infants, and the person with whom they resided, which is indorsed upon the summons and signed by her, and which is also contained in her petition for appointment of guardian ad litem, is not sufficient, and does not show service. In the first place, the court holds that the mother and only surviving parent of these infants being the plaintiff in the cause, and cognizant of the issuance of her own summons, it was not necessary that there should be any formal service whatever upon her; the object of service being to give notice, and she having notice already, and acting upon that notice in procuring the appointment of a guardian ad litem for the infants. There being no general or testamentary guardian, and the plaintiff being the mother, and the person with whom the infant defendants resided, it would be a vain and useless act to make a formal delivery to her of her own summons by the hands of an officer or other person to make such formal service. In point of fact, however, the record shows that the summons was served by delivery to the infant defendants, as appears by the proof of service indorsed on the summons, and also shows that it was served on C. R. Foster, the mother of said infants, and the person with whom they resided, as appears by the written acknowledgment signed by her, indorsed upon the summons. Besides, in her petition for the appointment of guardian ad litem for these same infants, there appears a clear acknowledgment and admission of service. The record, therefore, in the case of C. R. Foster v. Eloise Foster et al., shows affirmatively the infant plaintiffs here, all of whom were defendants there, were served with the process in that action by the delivering, not merely to the infants themselves, but also to their mother, C. R. Foster, with whom these infants resided. It shows that the said C. R. Foster thereupon applied for and procured the appointment of a guardian ad litem for said infants, who appeared and answered for and in the name of said infants. Thereafter a decree for the sale of said lands was made, the sale had, under which defendant acquired title to the land here in question, and such sale and conveyance confirmed by the Court. It must be concluded that the title to the land in question passed by such sale, conveyance, and confirmation of sale."

Thereupon the presiding judge, O. W. Buchanan, signed the following order or decree in the case against R. L. Crawford:

"A jury trial of the legal issues as to the title to the land here in question having been duly waived by the parties plaintiff and defendant, and the said legal issue as to the title of the land here in question having been submitted for determination by the court, the equitable issues raised by the allegations of the answer and the counterclaim for betterments therein set up being reserved, after hearing the evidence I find that the legal title to the land here in question is in the defendant; there being no jurisdictional defect in the case of Charlotte R. Foster v. Eloise Foster et al., the facts are not disputed, and the reasons for the conclusion that there is no jurisdictional defect in the record of the judgment in the case of Charlotte R. Foster v. Eloise Foster et al. have been orally stated, and taken down by the stenographer. Hereupon it is ordered and adjudged that the complaint be dismissed, with costs. O. W. Buchanan, Judge Presiding. October 25, 1899."

The above is the order in the case against R. L. Crawford. In each of the other cases by same plaintiffs against the defendants severally named in the several cases stated in the title it was conceded by plaintiffs in open court that said decision of the question submitted to and decided by the court by the decree in the above-stated case against R. L Crawford was conclusive of the issue submitted in the said other cases; the facts in said other cases upon this particular issue being admitted by plaintiffs to be substantially the same as in the Crawford case; the defendants in said other cases holding under deeds executed by the clerk of the court in pursuance of sales made as in the Crawford case; all other issues in said other cases being reserved. Accordingly the following decree in each of the other cases...