Genobles v. West
| Citation | 23 S.C. 154 |
| Parties | GENOBLES v. WEST. |
| Decision Date | 20 July 1885 |
| Court | United States State Supreme Court of South Carolina |
1. The validity of a former judgment may be attacked in subsequent action brought for that purpose, although other relief be also demanded.
2. A sheriff's return of personal service, while presumptively correct, is rebutted when disproved by the entry in his writ book, and by the testimony of the deputy to whom the paper was delivered for service, and of the person upon whom the alleged service was made.
3. The Court of Common Pleas can acquire jurisdiction of a minor by personal service only.
4. Irregularities arising subsequent to the service of a summons cannot properly, it seems, enter into the question of jurisdiction, nor render the judgment void.
5. Where the proper party is served, and makes default, he is bound by the judgment, although incorrectly named in the summons.
6. Parties who take no steps to avoid proceedings relating to land in which they have a future interest, or to prevent strangers from dealing for it with another as his own (they having no positive knowledge of such dealings until after purchase completed), are not estopped from afterwards claiming this land from such purchasers.
7. The statute directing that the order for a judgment by default be endorsed upon the complaint, and that " no execution shall be signed on judgments obtained by default in any other manner," is directory, and a failure to observe this law does not invalidate a judgment otherwise regular.
8. It cannot be assumed that in action for cancellation of deed on the ground of fraud, a judgment was rendered for the plaintiffs without any evidence; but were the fact so, the judgment could not be corrected in a subsequent action.
9. It is not necessary that a summons should be signed and sealed by the clerk of the court.
10. Where dower is renounced upon a mortgage, in which power is given to the mortgagee on default to sell the land, satisfy the mortgage, pay subsequent encumbrances, and turn the surplus over to the mortgagor, all of which is done in the life-time of the mortgagor, his widow cannot claim dower out of this land, or any part thereof.
11. A claim not embraced in the pleadings, nor considered in the court below, disallowed on appeal, without prejudice to appellants' right to raise such issue by amendment in the further progress of the cause on Circuit.
12. A renunciation of dower certified to by the person taking it under his hand and seal, but without stating his office, held sufficient under the proof that such person was at that time a trial justice.
Before FRASER, J., Spartanburg, May, 1884.
In this case the Hon. I. D. Witherspoon, of the sixth Circuit, sat in the place of the Chief Justice, who had been of counsel in the cause.
To the full statement of the case, as made by the Circuit Judge, it will be necessary to add only that the renunciation of dower on the mortgage to Fowler was as follows: & c. (following the usual form). Its conclusion was as follows:
The Circuit decree was as follows:
The cause came up on a report of a special referee and exceptions thereto. On October 26, 1874, John Genobles executed a deed by which he conveyed to the plaintiffs, Edwin Belton Genobles and others, his children by a former marriage, a tract of land described in the complaint, and the subject of litigation in this case. He reserved in this deed a life estate in himself, and at his death the sad land was to be sold and the proceeds divided equally amongst his said children, the children of any one of them then dead to take the share of their parents. In this deed no provision was made for his wife, Susan B. Genobles, one of the defendants in this case. To Franklin G. Genobles, another son, and one of the defendants, he gave in said deed one dollar.
On May 31, 1877, the said John Genobles filed a complaint against all of his said children, except Franklin G. Genobles, the purpose of which was to set aside said deed on account of undue influence exercised over him by his said children while he was under incapacity from age, infirmity, and distress of mind, from some great family affliction. To this complaint no answers were filed by any of the defendants, except by Henry C. Genobles, then a minor, near eighteen years of age, by his guardian ad litem , as will be hereinafter more fully stated. There is nothing to show that the adult children made any opposition to the wishes of their father John Genobles, while the testimony taken in the case shows that several of them were willing that their father should have the relief demanded in the complaint; and all of them knew that the complaint had been filed. The cause was placed on calendar 6, and when it came up for a hearing Judge Mackey, who was then holding the regular term of the court, made a decretal order, in which it was held that said deed " is void as against the plaintiff (John Genobles), and has no legal force and effect," and " that the said deed be delivered up for cancellation by the clerk of this court, and that the same be cancelled and discharged of record, and that the defendants be perpetually enjoined and restrained from exercising any rights and privileges under said conveyance." This decretal order bears date October 20, 1877, and was marked on the back of it, " Filed October 20, 1877," by the clerk of the court.
After these proceedings were had John Genobles executed a mortgage of this land to one Fowler to secure the payment of $300, money borrowed. On this mortgage Susan B. Genobles, then the wife of John Genobles, duly renounced her dower. John Genobles having failed to pay this debt, Fowler, under a power reserved in the mortgage, and after due notice, sold the land to Dr. Cleveland for $801. This sale was made in the life-time of John Genobles, and after paying the mortgage debt and some small judgments against him, the surplus was turned over to him. The title was made to Dr. Cleveland, and he conveyed the land to the defendant, J. Walter West.
W. L. Genobles, one of the children, purchased six acres of this land from his father, John Genobles, which, by several intermediate conveyances, was also transferred to the defendant, West. His title to this six acres, I understand, is not disputed in this case. John Genobles died January 8, 1883.
Now, the purpose of the present action is to have this decretal order of Judge Mackey " reversed and adjudged null and void," and the parties " enjoined from enrolling the same," and to have the possession of the said land or partition thereof and general relief. Susan B. Genobles, the widow, is a defendant, and claims dower in the land. Franklin G. Genobles, though claiming more in his answer, put in by a guardian ad litem , insists in the argument only on the payment of one dollar and interest and costs. The referee has dismissed the complaint as to Rena Genobles, another minor, who is not in any way mentioned in the deed of John Genobles. John Robert Genobles having died since the commencement of the suit, by an order of the referee his widow and children have been substituted in his place in the action, guardians ad litem having been duly appointed by the judge of probate for such of them as are minors.
The case of the plaintiffs in this action is based on the theory that the proceeding above referred to, which terminated in the decretal order of Judge Mackey of October 20, 1877, is absolutely void, or that it is voidable, and should be set aside by the court in this action, and the plaintiffs remanded to their rights under the deed of John Genobles of October 26, 1874. The objections on which plaintiffs rely, as I understand them, are as follows:
1. That the summons in that case was not signed and sealed by the clerk of the court.
2. That the summons was not served personally on the defendants in that action, or by delivery to such other person as was then required by law.
3. That the decretal order of Judge Mackey was never enrolled or recorded.
4. That the minor, Henry C. Genobles, was not served personally with the summons; that there was no personal service on him of the notice of application for the appointment of guardian ad litem; and that the notice which was left at his residence was for an application to Judge Northrop, and not to Judge Mackey, by whom the order appointing the guardian ad litem was made.
5. That neither the petition for nor order appointing the guardian ad litem were filed, nor was his answer filed or served on plaintiffs' counsel in that cause.
6. That the order of Judge Mackey was not endorsed on the complaint.
7. George T. Genobles also claims that he was never made a party to that action, one J. T. Genobles having been named in the complaint, and not George T. or G. T. Genobles .
8. None of the defendants in that action answered, except the minor, Henry C. Genobles, in the manner above stated, and it does not appear that the decretal order of Judge Mackey was founded on any report of a referee as to facts, or any testimony taken in open court.
I will state my conclusion on these questions as fully as the time at my disposal will allow:
1. Under the old practice a writ in the common pleas or a subpoena ad respondendum in equity, by which an action was commenced, was a process of the court to compel the attendance of the defendant in order that his person as well as...
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