Odom v. Burch

• Citation: 29 S.E. 726,52 S.C. 305
• Parties: ODOM . v. BURCH.
• Decision Date: 13 April 1898
• Court: South Carolina Supreme Court

29 S.E. 726

52 S.C. 305

ODOM .

v.BURCH.

Supreme Court of South Carolina.

April 13, 1898.

Appi'.al, — Default Judgment — Judge — Jurisdiction—Certificate as to Purchase Monet.

1. The statutes make no provision for an appeal from a default judgment.

2. The ruling of the court in refusing relief from a judgment by default, as provided by Code Civ. Proc. § 195, wherein such relief is within the court's discretion, cannot be reviewed unless such discretion has been abused.

3. One circuit judge cannot review an order of another circuit judge, to ascertain if the latter committed an error of law.

4. In a suit on notes given for land, it is not error for the court to grant a certificate, without notice to the defendant, that the notes are for the purchase money of a homestead, when the complaint, without stating that such cer tificate would be requested, alleges that the notes were given for the purchase money of land.

5. Under Code Civ. Proc. § 414, providing that, in case of default, service of notice of papers in ordinary proceedings need not be served on a defendant, an application for a certificate that the notes sued on are for purchase money of a homestead is an ordinary proceeding, and a defaulting defendant is not entitled to notice thereof.

Appeal from common pleas circuit court of Chesterfield county; R. C. Watts and J. C. Klugh, Judges.

Action by John W. Odom against Henry Burch. Judgment for plaintiff. Defendant appealed. Affirmed.

W. P. Pollock, for appellant.

Stevenson & Matheson, for respondent.

JONES, J. Judgment by default was entered February 17, 1896, against the defendant in this case, pursuant to an order for judgment by Judge R. C. Watts dated February 5, 1897, as follows: "It appearing that the notes sued on herein were given for the purchase money of defendant's homestead, and there is due thereon to plaintiff the sum of $336.11, and defendant having made no answer, on motion of W. F. Stevenson, plaintiff's attorney, it is ordered that plaintiff have judgment against the defendant for $336.11; and I certify that the same is for the purchase money of defendant's homestead, and for nothing else; and the clerk is ordered to indorse a copy of this certificate on all process issued in this case for the collection of said debt." When the plaintiff's attorney asked for judgment, he stated that he desired a certificate that the debt was for the purchase money of defendant's homestead, and wished to swear a witness as to that matter. The plaintiff was then sworn, and testified that the notes sued on were given for the purchase money of a tract of land bought by defendant from Isham A. Wallace, the payee of the notes; that lately, since plaintiff (to whom Wallace had assigned the notes) had been insisting on payment of the debt, the defendant had exchanged that tract for the tract in his possession at the time of the trial; and that he owned no other, land. The question was then submitted to Judge Watts whether the debt sued on was the purchase money of the defendant's homestead; and Judge Watts held that the same consideration ran through the entire transaction, and that the land in the possession of defendant stood, with reference to the debt, as the original tract for which the notes were given, and so gave the certificate asked for. Under an execution issued on said judgment, the sheriff of Chesterfield county levied upon the land in defendant's possession, and advertised the same for sale, but the sale has not taken place pending the motion hereinafter mentioned. In July, 1897, after due notice, defendant moved before Judge Klugh, presiding at Chesterfield, to open said judgmentand set aside so much thereof as contains the certificate that said judgment is for the purchase money of defendant's homestead; the grounds of the motion being that defendant had no notice that plaintiff would move for such certificate, that such certificate was not true in fact, and that it was taken through defendant's mistake, inadvertence, surprise, and excusable neglect, —the same being taken, in his absence, by default, and without notice. After hearing the affidavits submitted, Judge Klugh refused the motion, by order date July 2, 1897; holding that the facts relied on by defenda...