State ex rel. McCall v. Cohen
| Decision Date | 15 March 1880 |
| Docket Number | CASE 830. |
| Citation | 13 S.C. 198 |
| Parties | STATE, EX REL. MCCALL, v. COHEN. |
| Court | South Carolina Supreme Court |
1. A judgment rendered by an inferior court against a party not brought within its jurisdiction by proper service of process may be set aside under proceedings by certiorari .
2. A motion made before a trial justice to vacate, upon jurisdictional grounds, a judgment rendered by him, does not preclude proceedings by certiorari in the Circuit Court for the same purpose, where the want of jurisdiction appears upon the face of the record.
3. A service by one styling himself a constable would not be sufficient service, in the absence of a duly authorized appointment in writing for such purpose, there being no regular constables in this state elected as required by the constitution.
4. Proof of service by a constable can be made to appear only by his affidavit.
5. A voluntary appearance, to be binding upon the defendant, under Section 162 of the code of procedure, as the equivalent of personal service, must be made before judgment.
Before WALLACE, J., Darlington, March, 1879.
This was an application to the Circuit Court, in June, 1878, for a writ of certiorari , commanding a trial justice to certify the record of a judgment rendered by him in favor of the defendants here against the relator, and setting forth several matters upon which it was claimed that the judgment was erroneous and that the trial justice was without jurisdiction of the case. The judgment was entered May 28th, 1877. In August 1877, the relator here moved before the trial justice to set aside the judgment upon the ground, inter alia , that no action was ever commenced in the manner required by law. This motion was refused and no appeal was taken. On July 14th, 1877, McCall had written to the trial justice, saying: & c. The defects in the service of the summons by the constable are fully set forth in the opinion of the court.
The Circuit judge ordered the judgment and executions to be set aside and annulled, with costs; and the defendant appealed.
Mr. R. K. Charles , for appellants.
The writ of certiorari is not a writ of right, and should not be granted when the allegations of error do not appear to be well founded. Such error must be an error of law of a jurisdictional character. 12 S. C. 111. There was another adequate remedy. 16 Stat. 60; 1 Bail. 457; Powell on App. Proc. 349, § 4. The return to the writ exhibits no error of jurisdiction on the face of the proceedings, and this is conclusive in certiorari. Id. 353, § 5. The only alleged jurisdictional error is want of service, but that was cured by his voluntary appearance and motion to set aside the judgment; and appeal was his only remedy. 1 Bail. 294.
Mr. B. O. Townsend , contra.
Trial justices are an inferior court, (2 S. C. 404) and can exercise no jurisdiction not expressly authorized by statute. 5 Cr. 184. When jurisdiction is exceeded, certiorari is the proper remedy. 2 Hill 369; 9 Rich. 292; 12 Rich. 44; 9 S. C. 303; 1 El., B. & E. 100; Hill. on New Trials , 692-696; 22 Ill. 333. The trial justice was guilty of usurpation of jurisdiction, apparent on the record, in this: that as no constables are elected in Darlington, and no special appointment of constable appears in writing on the record (Gen. Stat. 205, § 2,) for reasons founded on Sections 122 and 161 of the code, the action was not known to have been commenced when the judgment was rendered. The relief granted in this case was proper. Hill. on New Trials, ch. XX .
The object of this proceeding was to review, by certiorari , a judgment rendered by a trial justice. Such a writ cannot be demanded as a substitute for an appeal (State v. Steuart , 5 Strob. 29,) and, therefore, if the grounds upon which it was demanded were such as could have been presented by appeal, the writ should not have been granted. But if it appears from the return that the inferior tribunal to which it was directed has undertaken to render judgment in a case of which it had no jurisdiction, or against parties who have not, by proper process, been brought within its jurisdiction, then the writ was properly granted. In this case the allegation is that the trial justice proceeded to render judgment against parties who had not been served with process or otherwise legally been made parties to the action in which the judgment was rendered. It also appears that this question was submitted to the decision of the trial justice by a motion to set aside the judgment; and it is contended that by so doing the respondent, under the rule laid down in State v. Scott , 1 Bail. 294, has precluded himself from raising the question of jurisdiction in this form, and can only do so by appeal from the decision of the trial justice on the motion to set aside the judgment. It is very true that the rule laid down in that case is that where a party submits a question of jurisdiction to the inferior court, its decision of such question has the same binding force as its decision of any other question submitted to it, and that any error in this respect must be corrected in the same manner as any other errors are corrected, viz., by appeal. But the exception to the rule is recognized by the same case; and that is, where the want of jurisdiction is apparent upon the face of the proceedings themselves. So that if the proceedings before...
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