New York Life Ins. Co. v. Mobley

• Decision Date: 11 March 1912
• Citation: 73 S.E. 1032,90 S.C. 552
• Parties: NEW YORK LIFE INS. CO. v. MOBLEY.
• Court: South Carolina Supreme Court

73 S.E. 1032

90 S.C. 552

NEW YORK LIFE INS. CO. v. MOBLEY.

Supreme Court of South Carolina

March 11, 1912

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 original 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 defendant, the pleadings of the cause, and the demurrer. Being of the opinion that the action by plaintiff will not lie, its remedy being under section 195 of the Code, I decline to grant the restraining order asked for, and the motion is hereby denied."

The plaintiff appealed upon the following exceptions:

(1) "Because his honor held and ruled that the action of the plaintiff would not lie; it being respectfully submitted that the action would lie because: (a) The complaint set forth equitable grounds of relief; (b) the remedy sought by the plaintiff was a proper one; (c) The remedy is a direct proceeding to set aside the judgment upon the grounds that the same was void, and for equitable relief, as therein set forth, is in the same court, and between the same parties; (d) because this is a proper action, as provided in section 89, pt. 2, of the Code of Civil Procedure."

(2) "The order of his honor, holding that the plaintiff's action will not lie, and that its remedy is under section 195, and declining to grant an order restraining the defendant from levying and collecting its execution, it being too late to assert the remedy under these provisions, would deprive the plaintiff of its property without due process of law, contrary to the Constitution of the United States."

(3) "The order of his honor, denying to the plaintiffs the right to maintain this action, and declining to restrain the issuance of the execution by the defendant, denies to the plaintiff the equal protection of the law, contrary to law and to the provisions of the Constitution of this state and of the United States."

(4) "Section 195, pt. 2, of the Code of Civil Procedure, does not furnish any remedy in this case, because said section is only applicable to judgments which were entered through 'mistake, inadvertence, surprise or excusable neglect.' The judgment involved here was not recovered through the defendant's mistake, inadvertence, surprise, or excusable neglect, but was entered without any notice whatever to or service of process upon the defendant."

(5) "That, inasmuch as the remedy provided under section 195, pt. 2, of the Code of Civil Procedure, is a right resting in the discretion of the court, and limited to one year, in the case at bar, where the plaintiff has never been served with process, and has never had an opportunity of being heard according to law, it is not an adequate remedy for the protection of the rights of the plaintiff, and deprives the plaintiff of the equal protection of the law, and takes its property without due process of law, contrary to the provisions of the Constitution of this state and the United States."

In the case of Crocker v. Allen, 34 S.C. 452, 13 S.E. 650, 27 Am. St. Rep. 831, the action was brought by the plaintiff therein to set aside a judgment previously recovered against her by the defendant therein, and to obtain an injunction to restrain the enforcement of the execution, issued on said judgment, solely upon the ground that she was never served with the summons in the former action, and had no knowledge of any such proceedings against her until her land was advertised for sale under said execution.

Mr. Justice (afterwards Chief Justice) McIver, in delivering the opinion of the court, used this language: "As it was well settled that a court of equity would not entertain a case asking for relief where the party complaining had a plain, adequate, and complete remedy at law, the practical inquiry in this case is whether, under the former practice, the plaintiff would have had a plain and adequate remedy for the wrong of which she complains by motion to the court, and in the case in which the judgment in question was rendered. If she had, then she cannot maintain an action on the equity side of the court to obtain the redress sought, but must resort to the simpler and less expensive remedy by motion. A review of the authorities will show, beyond dispute, that the court of common pleas has always obtained and exercised the power to entertain such a motion."

After reviewing the authorities, he...