St. Clair v. St. Clair

• Decision Date: 16 February 1935
• Docket Number: 13994.
• Citation: 178 S.E. 493,175 S.C. 83
• Parties: ST. CLAIR v. ST. CLAIR et al.
• Court: South Carolina Supreme Court

178 S.E. 493

175 S.C. 83

ST. CLAIR v. ST. CLAIR et al.

No. 13994.

Supreme Court of South Carolina

February 16, 1935

Appeal from Common Pleas Circuit Court of Greenville County; G. B Greene, Judge.

Action by Belle P. St. Clair against Dan M. St. Clair and the Mutual Life Insurance Company of New York. Judgment for plaintiff and the Mutual Life Insurance Company of New York appeals.

Affirmed.

Thomas Lumpkin & Cain, of Columbia, for appellant.

Wilton H. Earle and W. E. Bowen, both of Greenville, for respondent.

G. DEWEY OXNER, Acting Associate Justice.

This action was commenced on June 17, 1931, for the purpose of enjoining defendants from changing, or attempting to change, the beneficiary of a certain policy issued by defendant, Mutual Life Insurance Company of New York, on the life of defendant Dan M. St. Clair, in which plaintiff, Belle P. St. Clair, is named as beneficiary. Said policy is in the amount of $5,000, and is dated February 9, 1931. Service of the summons and complaint was made upon the defendant St. Clair on June 18, 1931, by delivering to Mrs. A. C. Walker, and leaving with her, copy of the same at his office in the Walker building, Greenville, S.C. After due notice, an order was passed on April 19, 1933, allowing plaintiff to amend her complaint. The notice of the motion to amend was served on defendant St. Clair personally in Winston-Salem, N. C., on February 21, 1933, and the amended complaint, together with order allowing same, was served on said defendant on April 22, 1933, by personal service at Winston-Salem, N.C. Defendant St. Clair defaulted. A return and an answer were duly made by defendant insurance company.

In her amended complaint plaintiff alleges, in substance, that she is a resident of Greenville county, S. C.; that, at the time this action was commenced, the defendant St. Clair was a resident of said county and state; that on May 19, 1931, she instituted an action in the court of common pleas of Greenville county against Dan M. St. Clair, who was her husband, for separation and alimony, in which action he appeared and answered; that on May 29, 1931, an order providing for temporary alimony was passed, which was personally served on said defendant in the city of Greenville on May 29, 1931; that within a few days thereafter defendant St. Clair left the jurisdiction of the courts of this state, and went to Reno, Nev., for the purpose of attempting to secure a divorce from her. She further alleges the issuance of the insurance policy in question, and that St. Clair had agreed not to change the beneficiary if she would assume the payment of the premiums on said policy, which agreement she has fulfilled by payment of the premiums, and the policy had been assigned to her. That, notwithstanding said agreement, St. Clair was attempting to change the beneficiary or to make an assignment of said policy.

In its answer, defendant insurance company, after admitting the issuance of the policy, denied that St. Clair, at the time the action was commenced, was a resident of South Carolina, and alleged that its codefendant St. Clair had not been properly served with process, and that no final order could be made concerning said policy, and set up the terms of the policy with reference to change of beneficiary. Defendant further alleged that if a final order was made without due and legal service being first made on St. Clair it would jeopardize its rights, in that it may be held liable hereafter on two claims or demands being made against it under the same policy.

Upon the issues raised, the case was heard by his honor, Judge Greene, who, after hearing the testimony, issued an order on March 27, 1934, permanently enjoining defendants from changing, or attempting to change, the beneficiary in said policy, and adjudging plaintiff to be the owner and holder of said policy.

Within due time, defendant insurance company appealed, and by its exceptions raise three questions, which are stated by appellant in its brief as follows:

"1. Was Dan M. St. Clair legally served with the original summons and complaint, and was he a resident of the State of South Carolina at the time of the attempted service?

2. Was the amended summons and complaint legally served on the defendant Dan M. St. Clair and is he bound by the final decree made in this case?

3. If Dan M. St. Clair was not properly served, then is the defendant The Mutual Life Insurance Company of New York bound by the decree in this...