National Exch. Bank v. Stelling

• Citation: 10 S.E. 766,32 S.C. 102
• Parties: NATIONAL EXCH. BANK v. STELLING et al. COMMERCIAL BANK v. SAME. AUGUSTA SAV. BANK v. SAME.
• Decision Date: 18 February 1890
• Court: South Carolina Supreme Court

10 S.E. 766

32 S.C. 102

NATIONAL EXCH. BANK v. STELLING et al.

COMMERCIAL BANK v. SAME.

AUGUSTA SAV. BANK v. SAME.

Supreme Court of South Carolina

February 18, 1890

Appeals from common pleas circuit court of Aiken county; WALLACE Judge.

Wm. T Gary, Aldrich & Ashley and M. P. Foster, for appellants.

Croft & Chafee and Henderson Bros., for respondents.

SIMPSON C.J.

The defendant (appellant) F. H. Stelling, a resident of the state of Georgia, on the ___ day of ___, conveyed by deeds to the defendant Bredenberg, also a resident of the same state, 13 tracts of land located in Aiken and Barnwell well counties of this state, in consideration of money due from the said Stelling to the said Bredenberg; the said tracts being all the land or property then owned in this state by the said Stelling, as it is alleged. These deeds were executed in the city of Augusta, Ga., where these parties resided. At the time of the execution of these conveyances, Stelling is alleged to have been indebted to a considerable amount to the plaintiffs, respondents herein, all being corporations existing in the state of Georgia. After the executions of these deeds, two of the plaintiffs first mentioned herein above obtained judgments for their demands against Stelling in the superior court of the county of Richmond, Ga. The third plaintiff's demand was evidenced by note of Stelling, but had not been reduced to judgment. Under these circumstances, the plaintiffs commenced separate actions in this state against the said Stelling and the said Bredenberg,--the action below,--praying judgment against Stelling for the amount of these claims, and that the deeds or conveyances of the land be vacated and set aside, as in violation of the seventy-third chapter of the General Statutes of this state known as the "Assignment Act," and also because fraudulent, being intended to delay, hinder, and defeat creditors. Upon an affidavit of one of the attorneys of the plaintiffs, an order of service of the summons in each case by publication was obtained from the master. No publication, however, was made; but the summons in each case was served upon the defendants in Augusta, Ga Bredenberg appeared, and answered; but Stelling did not answer. He, however, through his attorney, gave notice that he appeared for the purpose of moving to set aside the service of the summons, and also to set aside attachments which the plaintiffs had caused to be issued, and which had been levied upon the lands aforesaid, and for this purpose only. This motion was based upon alleged irregularities in obtaining the service of summons and the attachments, and also upon the ground that the facts stated in the complaint did not constitute a cause of action. For some reason, these motions were not heard at the first term after the notice but at that term the plaintiffs obtained judgment against Stelling by default, and duly entered up the same, issued execution, and had a return of nulla bona, and gave notice that they would apply for leave to file a supplemental complaint, setting forth the judgments and the return of nulla bona. Stelling then gave notice of a motion to set aside the judgments by default. His honor, Judge NORTON, heard these different motions, who rendered a decree in which he held-- First, that the complaints stated facts sufficient to constitute causes of action; second, that the service of the summons was sufficient, and legal; third, that the attachments were valid, and that the motion to vacate them should be denied; and, fourth, that the judgments by default against Stelling in each case should be set aside, as also the executions thereon, and that Stelling should have leave to answer within 20 days after the filing of his decree. And he further ordered that the motion of the plaintiffs to file supplemental complaints be denied, without costs. From this decree, Stelling appealed upon exceptions alleging error to his honor in so far as he declined to set aside the attachments, and to vacate the service of the summons and complaint in each of the causes; and he gave notice that he would sustain the setting aside of the judgment by default against him upon other grounds than that upon which the judge acted. This appeal was heard by this court; and the decree below was reversed as to the attachments, but sustained as to the service of the summons, and the other matters involved. See 9 S.E. Rep. 1028 While this appeal was pending, and before the court announced the judgment, the case came up before his honor, Judge WALLACE, who heard the case notwithstanding the pending appeal, which was brought to his attention. His honor, after the hearing, took time to prepare his decree, and before he filed it the opinion of the court was announced, and the remittitur sent down to Aiken. Thereafter the decree below was filed, in which judgments were ordered and granted in each of the cases against Stelling for the amount of the claim sued for, and also the deeds of conveyances described in the complaints for the lands in question were set aside as null and void because in violation of the assignment act of this state. Section 2014. From this decree, Stelling and Bredenberg both have appealed. The three causes above were heard below together, and have been heard here together. The exceptions will be found attached below:

"Please take notice: That the defendants herein do except to the decree of his honor, Judge W. H. WALLACE, filed herein on the 31st of August, 1889, and do appeal therefrom, and the judgment based thereon, dated September 3, 1889, to the supreme court of this state, and will ask the reversal of said decree and judgment on the following grounds: That his honor errs, as matters of law, in overruling the motions of the defendant Bredenberg set forth in his answer herein, to dismiss the summons and complaint herein, and that he should not be required to make answer to said complaint, which motions his honor, at the hearing, reserved for determination upon a consideration of the entire action; and it is submitted that the appearance of Bredenberg, under the circumstances, did not waive his right to a ruling upon said motions, or to appeal therefrom, which motions are: (1) That the complaint does not state facts sufficient to constitute a cause of action against these defendants. (2) That this court has no jurisdiction of the persons of the defendants, or either of them. (3) That the court has no jurisdiction of the action. (4) That the defendant Bredenberg has not been made a party to these proceedings, in accordance with the requirements of law. (5) Service of the summons and complaint herein was, illegally, made personally upon this defendant in the state of Georgia, in violation of his right, and without any legal order of publication. The affidavit upon which the same was based is insufficient and defective, in that it does not show that a cause of action exists against the defendant Bredenberg, or that he is a proper party to an action relating to real estate in this state, of which this court has

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