N.Y. Life Ins. Co v. Mobley

CourtUnited States State Supreme Court of South Carolina
Citation73 S.E. 1032,90 S.C. 552
Decision Date11 March 1912

73 S.E. 1032
90 S.C. 552


Supreme Court of South Carolina.

March 11, 1912.

1. Action (§ 35*) — Statutory Remedies — Vacation of Judgment—Remedy at Law.

It was the intention of Const. 1868, art. 5, § 3, providing that the General Assembly shall provide for abolishing the distinct forms of action and for a committee on revision, and of the Legislature by Code Civ. Proc. 1902, § 161, to abolish proceedings by petition for rehearing and by bill of review, and to substitute therefor the remedy provided by Code Civ. Proc. 1902, § 195, providing for the opening and vacating of a judgment for fraud, inadvertence, or excusable neglect on motion in the court rendering the judgment.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 273-294; Dec. Dig. § 35.*]

2. Judgment (§§ 499, 521*)—Collateral Attack—Equitable Relief.

A jurisdictional defect which does not appear upon an inspection of the record does not render a judgment void, but only voidable; and proceedings to have the judgment declared a nullity, other than a motion in the cause in which the judgment was rendered, must be regarded as a collateral attack.

fEd. Note.—For other cases, see Judgment, Cent. Dig. §§ 940, 964; Dec. Dig. §§ 499, 521.*]

[73 S.E. 1033]

3. Judgment (§ 4192-*)—Equitable Relief-Grounds.

An action cannot be maintained on the equity side of the court to set aside a judgment on the ground that it was a nullity, by reason of the fact that the summons was not served upon the defendant, unless the complaint alleges some other fact entitling plaintiff to equitable relief.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 794; Dec. Dig. § 419.*]

4. Judgment (§ 407*)—Equitable Relief-Grounds.

An action in equity for relief against a judgment on the ground that summons was not served on the defendant cannot be sustained because of the issuance of an execution upon the judgment, since relief against such execution may be obtained by motion in the cause in which the judgment was recovered.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 769; Dec. Dig. § 407.*]

5. Judgment (§ 460*)—Equitable Relief-Averment of Grounds—Multiplicity op Suits.

Equitable relief against a judgment for failure to serve the summons on the defendant will not be granted to prevent a multiplicity of suits, where no facts are alleged showing the necessity therefor.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 879; Dec. Dig. § 460.*]

6. Constitutional Law (§ 307*)—Due Process of Law—Enforcement of Judgment —Service of Process.

The contention that the refusal of equitable relief against a judgment in an action wherein the summons was not served on the defendant, though it appeared from the return of the sheriff that it had been served, will permit the taking of property of the defendant without due process of law, contrary to Const. U. S. Amend. 14, will not be sustained; the defendant having an adequate remedy at law by motion in the cause in which the judgment was rendered.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 925; Dec. Dig. § 307.*]

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

"To be officially reported."

Action by the New York Life Insurance Company against Nannie B. Mobley. From a judgment for defendant, plaintiff appeals. Affirmed.

See, also, 89 S. C. 189, 71 S. E. 817.

James H. Mcintosh, R. B. Allison, and D. W. Robinson, for appellant.

J. Harry Foster, for respondent.

GARY, C. J. This is an appeal from an order refusing an injunction and sustaining a demurrer to the complaint.

The action was brought by the New York Life Insurance Company for the purpose of having the judgment mentioned in the complaint declared to be null and void, and, in the meantime, of enjoining the enforcement of the execution issued upon said judgment.

The grounds upon which the plaintiff asks relief are thus summarized by the appellant's attorneys: "That the plaintiff, which was the defendant in the former action, had never been served with process and had had no opportunity whatever of being heard in the cause which had been instituted against it by the defendant That the service of the summons and complaint in the action brought by defendant contained proof of service, such proof consisting of the certificate of the sheriff that he had served the summons and complaint on one M. L. Beckham, as an agent of the plaintiff company; but, in fact and in truth, said Beckham was not an agent of the plaintiff company, took no notice of the paper served upon him, and gave no information thereof to the plaintiff company; and that plaintiff has at all times had an agent, duly appointed and designated according to law, within this state, upon whom service of process could be made. That a judgment by default was taken and entered against the plaintiff upon such service, and entirely without the knowledge of the plaintiff, until a short time after it was entered. That plaintiff brought this action promptly, after learning of the default judgment. That the plaintiff had a good and valid defense to the action, which is set out in the complaint, to the effect that the policy of insurance sued on had lapsed several years before the death of the insured by reason of the nonpayment of the insurance premiums. That the plaintiff was prevented from setting up its defense and from being heard thereon through no fault or negligence on its part, and the judgment rendered against it is unjust; and that it will be inequitable and unconscionable to allow the enforcement of a judgment so taken. That the defendant is proceeding to enforce and collect said judgment, which is in fact null and void."

The plaintiff alleges "that, unless restrained, the defendant will issue execution on said judgment, and cause the same to be levied on its property, and thereby injure its good name and reputation within said state by creating the impression that it is unwilling to pay its just debts, and will harass and annoy it, and interfere with its business in said state, and involve said company in a multiplicity of suits, and will take the property of said company without due process of law, contrary to the fourteenth amendment to the Constitution of the United States, to the great and irreparable injury of said company, for which it can have no adequate remedy at law."

The grounds of demurrer interposed by the defendant's attorney were as follows: "That the plaintiff has no cause of action, as alleged in the complaint, as the judgment therein set out is not subject to a collateral attack, and that the cause of action pleaded is a collateral attack on the said judgment. That the plaintiff has a plain and adequate remedy at law, to wit, a motion in the orig-

[73 S.E. 1034]

inal cause to vacate, modify, or otherwise secure the appropriate relief, under section 195 of the Code, providing for the opening and vacating of a judgment for fraud, inadvertence, or excusable neglect. That the Code of Civil Procedure has abolished the form of action set out in the said complaint; and that there is no sanction thereof by the Code of Civil Procedure. That the said complaint fails to state facts sufficient to constitute a cause of action, in that the complaint fails to show that the plaintiff has not a plain and adequate remedy at law. That the complaint on its face shows that the matters therein have been adjudicated, and the alleged cause of action is res judicata."

His honor, Judge Watts, made the following order: "This cause was heard before me, pursuant to notice given at Chester, S. C, November 13, 1911, upon the affidavits submitted by plaintiff and...

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