Stone v. Mincey

• Decision Date: 12 May 1936
• Docket Number: 14293.
• Citation: 185 S.E. 619,180 S.C. 317
• Parties: STONE v. MINCEY et al.
• Court: South Carolina Supreme Court

185 S.E. 619

180 S.C. 317

STONE v. MINCEY et al.

No. 14293.

Supreme Court of South Carolina

May 12, 1936

Appeal from Common Pleas Circuit Court of Greenville County; T. S Sease, Judge.

Action by E. E. Stone against E. E. Mincey, individually and as receiver for Edward B. Cohen, and others. Verdict for plaintiff, and from an order granting defendants' motion for a new trial, the plaintiff appeals.

Affirmed.

Ben F Perry and J. M. Wells, both of Greenville, for appellant.

Nettles & Poteat, of Greenville, for respondents.

BAKER Justice.

This action was commenced in the court of common pleas for Greenville county for the purpose of recovering the sum of $258.66, as rent for a tenement rented to Edward B Cohen by appellant on November 15, 1929, at a monthly rental of $140.

On January 27, 1931, in the case of Joseph S. Cohen & Sons Company, Inc., against Edward B. Cohen, an order was passed in the court of common pleas appointing E. E. Mincey, receiver for the said Edward B. Cohen. On January 28, 1931, E. E. Mincey accepted said appointment and qualified as said receiver by filing bond of respondent, Glens Falls Indemnity Company, in the sum of $8,000, the condition of the bond being that said receiver "shall duly account for what shall come into his hands or control as such receiver, and pay and apply the same from time to time as he may be directed by said Court and shall obey such orders as the court may make in relation to such trust, and faithfully perform all of his duties as such receiver, then this obligation to be void, otherwise, of full force and effect."

Subsequent to his appointment, the receiver continued to occupy the premises formerly rented to Edward B. Cohen, by appellant, conducting the business of Edward B. Cohen, as receiver, from the date of his appointment, January 27, 1931, to the date of his discharge by an order of Judge Wilson on April 3, 1931. The rent for the aforementioned premises was paid to February 15, 1931, but the rent from that date to April 3, 1931, was not paid, and for the recovery of such unpaid rent, this action is brought.

On April 3, 1931, Judge Wilson rendered an order, which after reciting the commencement of the foreclosure proceedings under which the said receiver was appointed, and the compromise of the parties to such action, provided "that E. E. Mincey, receiver, not be required to account to the Court for his receivership, and that his bond be cancelled; his receivership be and hereby is terminated and ended, and he is fully discharged therefrom."

The case came on for trial before Judge Sease and a jury on November 15, 1935. At the appropriate stage of the trial respondents made a motion for a directed verdict on three grounds, but the motion was refused, the case submitted to the jury, and resulted in a verdict for appellant in the sum of $258.66.

On motion for a new trial, respondents renewed the grounds of its motion for a directed verdict on trial, and Judge Sease granted a new trial on the second ground, which was as follows:

"The evidence shows that the bond sued on was entered into by order of the Court of Common Pleas and thereafter Honorable John S. Wilson, Presiding Judge, ordered said bond cancelled, the receivership terminated and ended, and the Receiver discharged. The present suit constitutes an attempt to collaterally attack the adjudication of the rights of the defendants made by Judge Wilson in the suit in which the bond was given."

The case is here on appeal from the order of Judge Sease granting a new trial on the ground that said action constitutes a collateral attack on the judgment adjudicating the rights of the parties, defendant (respondent) in the suit in which the bond in this action was given.

It is well settled that a collateral attack on a judicial proceeding is an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner not provided by law. If an inspection of the judgment discloses an infirmity or defect in the record itself, the judgment may be disregarded as null and void whenever and wherever it is encountered in any judicial proceeding, direct or collateral, but it is equally as firmly established that if it is necessary to show any matter dehors the record, in order to maintain an action, the purpose of which is to attack the judgment of a court of competent jurisdiction, such action is not maintainable, unless such relief demanded by the separate suit requires the decision of issues of fact by a mode of trial, or the application of some equitable remedy not available upon or by motion in the original cause. Tolbert v. Roark, 126 S.C. 207, 119 S.E. 571.

As before stated, Judge Wilson passed a final order on April 3, 1931, terminating and ending the receivership, discharging the receiver and canceling his bond, and unless this judgment is shown to be defective on its face, which is not contended here, it is absolutely impregnably fortified against collateral attack unless it can be brought within the purview of the exceptions laid down by the rule in the case of Tolbert v. Roark, supra.

It is urged that there are certain issues of fact to be determined in this case which bring it within the exceptions announced in the Tolbert Case. These issues are:

1. Whether or not the receiver committed fraudulent acts in the administration of his receivership in not paying the rent.

2. What rent he agreed to pay.

3. Whether the premises were occupied by the receiver for the preservation of the assets of the receivership and for what period of time.

Whether or not the receiver was guilty of fraudulent conduct in the administration of the receivership in not paying the rent does not afford sufficient reason to warrant a deviation from the rule that a judgment of a court of competent jurisdiction, regular on its face, is not subject to...