State v. Parker

• Decision Date: 01 February 1876
• Citation: 7 S.C. 235
• Parties: THE STATE v. PARKER.
• Court: South Carolina Supreme Court

7 S.C. 235

THE STATE

v.PARKER.

Supreme Court of South Carolina.

Feb. 1, 1876.

The principles decided in Ex Parte Parker (6 S. C., 472,) reaffirmed.

An order made on the motion of the Court itself, and without notice to the party prejudiced by it, will be set aside.

An order cannot be made in a cause without notice to the party prejudiced by it.

A Judge has no power of his own mere motion to make an order in a cause affecting the rights of a party.

BEFORE MACKEY, J., AT RICHLAND, AUGUST, 1875.

This was an action by the State of South Carolina and S. W. Melton, Attorney General of said State, against Niles G. Parker, late State Treasurer, the object of which was to recover the sum of $25,000 of the fund of the State alleged to have been embezzled and fraudulently applied and converted by the defendant to his own use.

The complaint stated the facts upon which the claim was founded, and it was verified by the affidavit of the plaintiff, S. W. Melton.

An affidavit for the arrest of the defendant was made by T. C. Dunn, the Comptroller General of the State. It was in the usual form, stating that a cause of action exists in favor of the plaintiffs against the defendant, and setting forth the grounds of his belief. It further stated: “That this deponent has been informed and believes that the said defendant is about to depart from this State with intent to defraud his creditors, and that the plaintiff has commenced an action in the Court against him upon the cause of action above stated.”

An undertaking for arrest, as required by the Code, was filed on behalf of the plaintiff, and an order for arrest, directed to the Sheriff, requiring him to arrest the defendant and hold him to bail in the sum of $30,000, was made by the Clerk of the Court.

The summons and complaint in the action, and the other papers above mentioned, were lodged with the Sheriff of Richland County on 16th August, 1875, and on the 17th August, 1875, he filed the following certificate:

“I hereby certify that on the 16th day of August, A. D. 1875, at 9 o'clock P. M., at the Court House, in Columbia, S. C., I served on the above named Niles G. Parker the summons and complaint in this action, by delivering copies thereof to him personally, and leaving the same with him, and was restrained from arresting the body of the said Niles G. Parker by an order of Judge T. J. Mackey, a copy of which is hereto annexed.

“J. E. DENT, S. R. C.”

A copy of the following order made by T. J. Mackey, Judge of the Sixth Circuit, and dated August 16, 1875, was annexed to the Sheriff's certificate:

“On inspection of the record in this case, the affidavit of Thomas C. Dunn, and the order of D. B. Miller, Clerk of the Court of Common Pleas and General Sessions for said County, requiring Jesse E. Dent, Esq., Sheriff of Richland County, forthwith to arrest Niles G. Parker in this action and hold him to bail in the sum of $30,000, and it appearing that said Sheriff is about to execute said order in the presence of the Court, and that said order is illegal and unauthorized:

Ordered, That the said Sheriff, Jesse E. Dent, be prohibited from executing said order, and that said order be vacated and set aside, in accordance with the decision of this Court, rendered this day, in the case of The State vs. Niles G. Parker, in proceedings under a writ of habeas corpus, issued therein, the said defendant having been discharged from custody because, in the judgment of this Court, the order of arrest, of like purport with that now under consideration, was without authority of law and repugnant to the Constitution of the State.”

To the above order the plaintiffs, on the 25th August, 1875, filed the following exceptions:

1. In that His Honor Judge Thomas J. Mackey made any order in the action, he having no jurisdiction of the case.

2. In that His Honor Judge Thomas J. Mackey made any order in the action, the same not being regularly before him for consideration.

3. In that His Honor Judge Thomas J. Mackey made any order in the action without notice to the Attorney General.

4. In that His Honor Judge Thomas J. Mackey made any order in the action without notice having been given to the Attorney General that proceedings would be had in the action.

5. In that His Honor Judge Thomas J. Mackey prohibited the Sheriff of Richland County from executing the order of the Clerk of the Court for Richland County, made in this action.

6. In that His Honor Judge Thomas J. Mackey held that the order of the Court for Richland County, made in this action, was without authority of law and repugnant to the Constitution of this State.

On the 3d September, 1875, His Honor Judge Mackey made the following order in this case:

“On reading the affidavits of Leroy F. Youmans, Maurice S. Parker and R. B. Elliott, ordered that cause be shown before me at the Court House, Columbia, South Carolina, at 5 o'clock P. M. Monday, 5th September, 1875, why the service of summons and complaint and the return thereof, and all subsequent proceedings herein, should not be set aside; and that copies hereof, and of said affidavits, be served on plaintiff's attorney, and on Jesse E. Dent, Sheriff of Richland County.”

To the above order the plaintiffs made the following return, verified by the oath of one of the plaintiff's attorneys:

“ To the Honorable T. J. MACKEY,

Judge of the Sixth Judicial Circuit of South Carolina:

“The plaintiffs above named, upon one of whose counsel has been served, on the fourth day of September, 1875, a rule requiring that cause be shown before your Honor at the Court House, Columbia, South Carolina, at 5 o'clock P. M., why the service of summons and complaint, and the return thereof, and all subsequent proceedings herein, should not be set aside,

For cause why the said rule should not be granted, respectfully show:

1. That your Honor has no jurisdiction of the said action, the same having been commenced in the County of Richland, in the Fifth Judicial Circuit of the said State.

2. Because the return of the Sheriff of Richland County shows that the said defendant was served with a copy of the summons and complaint in this action in accordance with law, and the plaintiffs crave leave to refer to the affidavits of Jesse E. Dent, James D. Evans, Thomas J. LaMotte, Thomas Dent and John Wingate, hereto annexed, for further corroboration of the said service.

3. Because no notice has been given, in accordance with law, of this rule to the attorneys of the plaintiffs.

The plaintiffs therefore pray that the rule herein may be dismissed with costs.”

The return was supported by the following affidavit, made by the Sheriff, and dated September 6, 1875:

“Personally appeared Jesse E. Dent, Sheriff of Richland County, who makes oath that on the 16th day of August, past, he delivered to and served upon Niles G. Parker copies of the summons and complaint in the above entitled case, and that the said Parker received the same into his...