Robertson v. Blair

• Decision Date: 30 September 1899
• Citation: 34 S.E. 11,56 S.C. 96
• Parties: ROBERTSON et al. v. BLAIR et al. KENT FURNITURE MFG. CO. v. SAME. BAGLY et al. v. SAME.
• Court: South Carolina Supreme Court

34 S.E. 11

56 S.C. 96

ROBERTSON et al. v. BLAIR et al.

KENT FURNITURE MFG. CO. v. SAME.

BAGLY et al. v. SAME.

Supreme Court of South Carolina

September 30, 1899

Appeal from common pleas circuit court of Fairfield county; G. W Gage, Judge.

Motion by defendant L. M. Blair in each of three actions against L M. Blair & Bro., by Robertson & Thompson, the Kent Furniture Manufacturing Company, and Bagly & Rivers, to open and defend default judgments entered against him therein. From an order denying the motions, defendant Blair appealed. Affirmed.

The following are the order and the grounds of appeal:

Order refusing motion: "This is a motion to vacate a judgment. The judgment was filed by the plaintiffs against the defendants October 9, 1891, and it was by default. The motion is by the defendant L. M. Blair, and the ground of it is the fact that at the time the judgment was entered the defendant L. M. Blair lacked about four months of attaining his majority, and he was not served according to the provision of the Code regulating actions against infants. There is no contest about the defendant's age. The defendant also alleges in his affidavit that he has a good defense to the cause of action, and, further, that he did not know of the judgment until April of the current year. An inspection of the record shows that the summons was personally served on L M. Blair. It fails to show the appointment of a guardian ad litem to defend the suit. The court had jurisdiction of the subject-matter. It had also jurisdiction of the person when its process was personally served on him. The judgment thereafter rendered was therefore not void; at most it was voidable. This is a proper proceeding to avoid the judgment. The exact inquiry is, ought it to be vacated, in this instance, on the showing made? I limit the inquiry to the facts of this case, because the justice of every suit must depend on the facts of that suit. A judgment like this against an infant will not be vacated as matter of course upon proof of the simple fact that when rendered the defendant was an infant. If A., a minor, should purchase of B. the necessaries of life, and B. should sue A. therefor, and get judgment, the same would not be vacated, although no guardian ad litem for A. had been appointed in the action. If vacated at all, it would be because justice had not been done between the parties. How is this case differentiated? The defendant L. M. Blair was a merchant with his brother, J. E. Blair. The firm bought a not of tobacco and furniture, failed to pay, were sued to judgment in three cases (of which this is one), do not deny they bought the goods, do not charge they have been imposed upon. The judgment has stood seven years. There is an allegation in the moving affidavit that L. M. Blair has a good defense to the action, and that he did not know of the judgment until April, 1898. But the defense is not disclosed, and I therefore cannot judge if it be good. The deponent does not deny that he was served with process; he does not deny that he knew he was sued in the case. It may be said he did not know judgment followed suit; but it was his duty to know that. Therefore the only ground upon which the motion can rest is the minority of one of the defendants. In my judgment, that is not by itself a sufficient ground to vacate a judgment of this character of seven years' standing. I do not rest my decision on the character of the contract with the infant, whether it was void or voidable. That question was merged in the judgment, and the question here is the status of a record. Nevertheless, I think the contract for the goods was binding on the infant, at least until other facts are shown tending to show the business was a hazardous one. Nor do I rest my decision on any act of L. M. Blair looking to a compromise of the claims as being a ratification of the judgment. I simply hold that the motion papers disclose no ground for the vacation of a judgment rendered seven years ago in a case when the court had jurisdiction of the subject and the parties, except the fact that at that time the defendant in judgment was only twenty years and eight months old. In every case reported since the adoption of the Code, wherein judgments have been vacated because infant defendants have been improperly sued, the ground of such opinion has been the failure to acquire jurisdiction of the infant by proper service. Finely v. Robertson, 17 S.C. 440; Genobles v. West, 23 S.C. 166; Carrigan v. Drake, 36 S.C. 355, 15 S.E. 339; Ruff v. Elkin, 40 S.C. 77, 18 S.E. 220; Tederall v. Bouknight, 25 S.C. 275. The defendant has waited too long. He has been guilty of laches. His creditor is now barred by the statute of limitation. It would be unjust to grant him the relief asked for. It is therefore ordered that the motion to vacate the judgment hereinbefore referred to be, and the same is hereby, refused."

Exceptions: "(1) For that his honor erred in not holding that the defendant L. M. Blair, being an infant at the time the judgment was rendered against him by default, and no guardian ad litem being appointed to represent him in the suit, nor any notice of the appointment of a guardian ad litem served on said defendant, the judgment was voidable, and should have been vacated as to the infant defendant. (2) For that his honor erred in not vacating said judgment, the same being, if not void, at least voidable, under the facts of the case; the defendant being a minor at the date of the rendition thereof, and was not represented by guardian ad litem. (3) For that his honor erred in holding that a judgment like this against an infant will not be vacated, as a matter of course, upon proof of the simple facts that when rendered the defendant was an infant, and did not appear by guardian ad litem in the suit, said judgment being taken by default, when he should have held that, these facts appearing, the judgment was void, or at least voidable, and he should have vacated the same. (4) For that his honor erred in holding that it is the duty of the infant to know that judgment follows service of process on him, and that the infant will be bound by judgment after service on him taken by default, when he should have held the infant was not bound by judgment unless he appeared by guardian ad litem. (5) For that his honor erred in holding that the motion papers disclose no grounds for vacating the judgment, when he should have held that it does not appear that the said L. M. Blair was an infant at the time of rendition of said judgment, that no guardian ad litem was appointed for him, that he did not know of the judgment until April, 1898, and that he had a good defense to the action. (6) For that his honor erred in holding that the defendant has waited too long, and has been guilty of laches, when he should have held that the motion to vacate the judgment was made in due time, and defendant was not guilty of laches. (7) For that his honor erred in holding that the lapse of time will defeat the defendant's right to have the judgment vacated, when he should have held there is no statute of limitation fixing the time within which a judgment of this kind can be vacated."

Additional grounds to sustain judgment of circuit court: "The respondents hereby give notice that they will ask the supreme court, in each of the foregoing cases, to sustain the judgment of his honor, Geo. W. Gage, rendered on the motions therein, on the following additional grounds to those mentioned in said judgment: (1) That, the judgments being against a partnership, the defendant L. M. Blair, claiming to have been an infant at the time the said judgments were rendered, must show either that there was no such partnership, or that he repudiated and disavowed the said partnership after attaining his majority; otherwise he is bound by all of the liabilities of said partnership. (2) That the said judgments, and the contracts on which the same were based, being merely voidable at most, and not void, are capable of being ratified and confirmed by the defendant after he became of age; that he should have disavowed and disaffirmed them within a reasonable time after attaining his majority, and, if he failed to do so for an unreasonable length of time, said judgments should not be set aside or opened on the mere ground of infancy, especially when the defendant was nearly twenty-one years of age, when he was personally served with the summons and complaints in these actions. (3) That the acts of the defendant after he became of age, and the letters written by him to the attorney of respondents in relation to said judgments, show a waiver of his rights under the plea of infancy, and amount to a ratification and confirmation of his liability on said judgments. (4) That the matter and question of opening or setting aside said judgments, they being merely voidable, was a matter within the discretion of the circuit judge, and is not appealable, unless it appears that there was a legal abuse of his discretion in the premises."

Jas. W. Hanahan, for appellant.

J. E. McDonald, for respondents.

McIVER C.J.

These three cases, growing out of the same facts and depending upon the same principles, were heard, and will be considered, together. A motion was made before his honor, Judge Gage, at September term, 1898, of the court of common pleas for Fairfield county, to vacate the judgments entered in each of said cases, upon the ground that the defendant L. M. Blair was a minor at the time said judgments were entered, and that no guardian ad litem was appointed to represent him in the actions in which said judgments were obtained.

The facts, as set forth in the moving papers and in the "case," are undisputed, and may be stated as follows: The actions were commenced...