Hunter v. Ruff

Decision Date16 July 1896
Citation25 S.E. 65,47 S.C. 525
PartiesHUNTER v. RUFF. BUCHANAN et al. v. SAME.
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of Fairfield county; Aldrich Judge.

Actions by Cyrus W. Hunter and by O. W. Buchanan and H. A. Gaillard respectively, against A. Fletcher Ruff, to recover lands. From decrees in favor of plaintiffs in the two cases defendant appeals. Both reversed.

The order for judgment in the case of Desportes against Hunter rendered by his honor, Judge J. B. Kershaw (out of which the actions at bar grew), the decree of his honor, Judge James Aldrich, and the grounds of appeal, follow:

Order of Judge Kershaw.

"The summons and complaint in this action having been filed in the office of the clerk of this court on the 27th day of December, 1887; and the defendant, Cyrus William Hunter, being not a resident of this state, and having property within this state; service of the summons upon said defendant by publication having been ordered, and, pursuant to said order, the summons having been duly published in the Winnsboro News and Herald once in each week for six successive weeks, commencing on the 29th day of December 1887; and a copy of the summons having been duly mailed to said defendant, Cyrus William Hunter, addressed to him at Leon, state of Nicaragua, Central America, his place of residence; and the time to answer having expired, and no answer or demurrer having been served on the plaintiff's attorneys, and the defendant having failed to appear; and an attachment having been issued against and upon property belonging to the defendant, Cyrus William Hunter, and proof thereof made by the affidavit of Henry N. Obear; and the defendant being not a resident of this state, the plaintiff having now in court made proof of the demand mentioned in the complaint, and the plaintiff having now in court been examined on oath respecting any payments that have been made to the plaintiff, or to any one to his use, on account of such demand, whereby it appears that no such payments have been made; and the plaintiff having produced in undertaking, with two sureties, approved by the clerk of this court, that he will make restitution if required, according to the requirement of subdivision 2 of section 267 of the Code of Procedure: Now, on filing said affidavit of Henry N. Obear and said undertaking, and on motion of Messrs. Obear & Rion, plaintiff's attorneys, it is ordered, that the plaintiff, Richard S. Desportes, recover against the defendant, Cyrus William Hunter, the sum of $182.85, together with his costs, to be adjusted by the clerk of this court."

Decree of Judge Aldrich.

"This is an action for the recovery of the possession of real property lying in the county of Fairfield, and damages for the withholding of the same. Trial by jury being waived the action was heard by the court. The evidence submitted consists of records of this court, and an agreed statement of facts. While the parties practically agree upon the facts, they differ widely in their views of the law, and these legal issues are submitted for the judgment of the court.
"On June 20, 1888, a judgment by default was entered up in the court in favor of one Richard S. Desportes and against C. W. Hunter, plaintiff herein, in the sum of $232.35. The subject of said action was a money demand, viz. a sealed note purporting to have been given by said Hunter to said Desportes, at Ridgeway, S. C., on January 5, 1871. Said Hunter was for many years prior to the institution of said action a nonresident of this state, residing in the state of Nicaragua, in Central America, and still remains a resident of that state. At the beginning of said action said Hunter owned a tract of land in Fairfield county, and still owns the tract in volved in this action, unless he has lost his title thereto by reason of the facts hereinafter stated. On December 27, 1887, said Desportes begun the aforesaid action upon said money demand against the plaintiff herein, by an attempt to serve the summons by publication, and by procuring an attachment to be issued and levied upon the land in dispute. Soon after the aforesaid judgment was entered up, execution was issued thereunder, levied upon the land in question, and it was sold by the sheriff of Fairfield county, under said execution, to the defendant herein, to whom he made a deed, under which defendant entered into possession of premises, and still retains possession. Defendant paid bid, and the sheriff applied same to the payment in full of said judgment debt, satisfying the same, on November 15, 1888; and the surplus, $123, is still in the hands of the sheriff. Matters remained in this status until September 16, 1889, when plaintiff, upon due and proper notice served upon said Desportes and A. F. Ruff, defendant herein, moved this court to set aside the said judgment by default in favor of Desportes and against plaintiff, and the sale to defendant made thereunder. A. F. Ruff was made a party to this motion. His attorney accepted service for him, and he submitted an affidavit, and was heard by counsel in opposition thereto. I note this fact because the learned judge who heard the motion seemed to think that A. F. Ruff was not a part defendant therein. This motion was heard by this court, and his honor, Judge Fraser, the presiding judge, on December 3, 1891, determined said motion by an order or decree wherein he says this is 'a motion to set aside (1) an order for judgment made June 20, 1888, for $182.85 and costs; and (2) a sale of a tract of land, made in pursuance of an execution issued thereunder, to A. F. Ruff, by the sheriff of Fairfield county.' 'Except that A. F. Ruff has furnished an affidavit to be used at the hearing of this motion, he has not otherwise been made a party to the proceeding before me. I do not, therefore, see how I can, with propriety, make any order setting aside the sale which will be binding upon him.' Judge Fraser then takes up the question of service by publication, and after nothing wherein the service was illegal, and that the court never acquired jurisdiction of the person of Hunter, says: 'This order does not set aside the attachment, or the service of the attachment, or the sale, nor dismiss the complaint, as these matters are not properly before me. (Italics mine.) 'It is ordered and adjudged that the judgment and execution above referred to be set aside for want of jurisdiction, and that the plaintiff have leave to proceed as he may be advised.' This order was duly filed in the office of the clerk of the court for Fairfield county, and formal notice of the filing of the same, given by the attorneys for Hunter, was accepted on February 26, 1892, by Mr. Obear, as attorney for Desportes, and McDonald & Douglass, attorneys for A. F. Ruff, defendant herein. The defendant A. F. Ruff was formally made a party to said motion to set aside the judgment. He appeared by counsel at the hearing, submitted affidavits in opposition to the motion, and was duly served with notice of Judge Fraser's decree. Neither R. S. Desportes nor A. F. Ruff appealed from said decree, and the judgment of Judge Fraser is the law of this case, upon all the issues adjudicated by him. This fact should be noted and observed. His decree, unappealed from, under the law of this state, as well as official amenity, is binding upon me, and every other court in this state. It is elementary law, requiring recitation of no authority in support thereof, that when parties have had their day in court, submitted their controversy to it, and the court has rendered its judgment thereon, that controversy is ended,--it is res adjudicata,--and the parties are estopped from again litigating the issue thus decided. This is a
most salutary rule of law, as the wisdom of the past and the experience of the present demonstrates. The plaintiff and the defendant herein were parties to the motion above related, and are bound by the decree of Judge Fraser. That decree, in express terms, decides (1) that the 'judgment' be 'set aside'; (2) that the 'execution' be 'set aside'; and (3) that said judgment and execution were 'set aside' for want of jurisdiction in the court over the person of Hunter. So far as the record before me discloses, Desportes never availed himself of the 'leave' given by Judge Fraser 'to proceed as he may be advised.' He did nothing. Matters remained in this condition until May 22, 1893, when the present action was begun. Afterwards the complaint was amended, and, as amended, served upon defendant, January 24, 1894. The amended complaint is in the usual form for the recovery of real property, and for damages for the withholding of the same.
"Defendant, in his answer, for a first defense, denies each and every allegation in the complaint. I need not discuss in detail, and as a separate matter, this defense, because many of the allegations in the complaint are true,--supported by the record, and the agreed statement of facts. The real issues come up in the other defenses, and upon these issues I will discuss every matter included in the general denial. For a second defense, the defendant states the facts upon which his title and right to the possession of the land depend, to wit, the judgment, sale, sheriff's deed, etc., as above stated, and alleges 'that at the time of his said purchase this defendant did not have any notice--actual, constructive, or otherwise--of any defect or irregularities in the said judgment and execution, but the same appear to be regular upon their faces; and this defendant therefore avers that he is an innocent and bona fide purchaser for a valuable consideration, without notice, and entitled, in law and equity, to the protection of this court.' Under the facts of this case, it is hard to comprehend

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