Middleton v. Stokes
| Decision Date | 06 March 1905 |
| Citation | 50 S.E. 539,71 S.C. 17 |
| Parties | MIDDLETON v. STOKES. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Hampton County; Dantzler Judge.
Action by Sallie C. Middleton against Annie C. Stokes. Motion by defendant to set aside judgment denied, and from such order defendant appeals. Affirmed.
W. S Tillinghast and Bellinger & Townsend, for appellant. W. B. S Smith and W. B. De Loach, for respondent Peeples. James W. Moore, for respondent Seaboard Air Line Ry. Elliott & Thomas, for respondent Leffler & Sons.
This action was commenced to perfect the title of the plaintiff as against the defendant, her infant daughter, to a tract of land by procuring a conveyance to be made under the order of the court. It appears from the complaint that Seth D. Stokes died in 1887, intestate, leaving as his only heirs his wife, the plaintiff, and his daughter, the defendant; that he owned a tract of land of 236 acres, subject to a mortgage; that the plaintiff paid the holder of the mortgage, in 1891, $655.68, the amount then due on the mortgage, and took from the mortgagee "a title to the said tract of land." It was alleged in the complaint that the title so made by the mortgagee was insufficient, and that the amount paid to him was the full value of the land. The court was asked to order the clerk to make a title to the plaintiff. The prayer of the complaint was granted, and the title was made by the clerk to the plaintiff under the decree of the court. Subsequently, A. Leffler & Son, M. L. Peeples, and Seaboard Air Line Railway Company acquired title through the plaintiff to portions of the tract of land. The plaintiff died after the execution of the title to her, and the defendant, now Annie C. Kincaid, and J. K. Kincaid, her husband, are executrix and executor of her will. The defendant, who is now 22 years of age, moved in April, 1904, to vacate and set aside the decree under which the land was conveyed by the clerk on several grounds mentioned in the notice. The circuit judge refused the motion.
The first question involved in the appeal is whether the proof of service of the summons on the infant is so fatally defective in not stating the place of service that the decree is void. The proof of service is as follows:
The motion was based entirely on the record as it stands, no allegation or proof having been offered that the defendant was not a resident of Hampton county and served therein. It is said in 1 Wait's Practice, 544: "While it is a substantial compliance with the requirements of the statute as to the manner of the service of the summons that gives to the court jurisdiction in a cause and a right to control all subsequent proceedings, the mode of proof of such service is a mere question of practice, and is incidental and subordinate to the jurisdictional fact that such service was duly made." It is the actual service and the actual residence that determines the jurisdiction of the person, not the proof by which these conditions of jurisdiction are made to appear. The purpose of the statutory requirement that the proof of service should state the place of service is to inform the court as to its jurisdiction just as the requirement that the time should be stated is to inform the court whether the defendant has had the required time to answer. If the proof fails to show the time of service, it would hardly be contended that the judgment should be avoided without any showing that the time had not actually expired when the decree was made. But, aside from this view, the record affords at least some evidence that the service was...
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