Turner v. Malone

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtMCGOWAN.
Citation24 S.C. 398
Decision Date17 March 1886
PartiesTURNER v. MALONE.

24 S.C. 398

TURNER
v.
MALONE.

Supreme Court of South Carolina.

Mar. 17, 1886.


1. The Court of Probate, though of limited jurisdiction, is a court of record with very large powers, and as to proceedings clearly within its jurisdiction, is not to be regarded as an inferior court in respect to the dignity of its records.

2. A judgment is void as to parties not within the jurisdiction of the court; and when the jurisdictional defect appears on the face of the record, the judgment may be disregarded as a nullity in any proceeding, direct or collateral.

3. But where it appears upon the face of the proceedings that the parties have, by proper service, been brought within the jurisdiction of the court, the judgment cannot be attacked collaterally or disproved by parol testimony, but can be avoided only by a direct proceeding instituted for that purpose by the party claiming not to have been served, in the court and in the case where the judgment was rendered.


Before COTHRAN, J., Spartanburg, March, 1885.

The case is sufficiently stated in the opinion of this court.

Messrs. Bobo & Carlisle, and J. S. R. Thomson, for appellant.

Messrs. Bomar & Simpson, and Duncan & Sanders, contra.


The opinion of the court was delivered by

MR. JUSTICE MCGOWAN.

This was an action for the recovery of a tract of land, 347 acres. Both parties claimed under one Edmond Cooley, jr., who lived on the land until his death intestate, about ten years ago. He left as his heirs and distributees a widow, Emeline, and five children, viz., John S. B. Cooley, Caroline Kimbrell, Teresa Oliver, Martha Jane Kimbrell, and Jefferson D. Cooley. The plaintiff claimed that the ancestor, Edmond Cooley, about 1864, made a deed of gift of the land to his wife, Emeline, which was not at the time probated or recorded; but about 1874, without a new deed, the old one, as claimed, was

[24 S.C. 399]

re-delivered and recorded. The plaintiff then introduced a deed from Emeline Cooley to the plaintiff, George S. Turner, bearing date September 17, 1877. This deed is not in the “Brief,” and, therefore, the consideration does not appear, but Mrs. Cooley, who was examined as a witness, testified that she received only $15 for her share of the proceeds of sale. Plaintiff rested.

The defendant answered the case made by offering in evidence the full record of proceedings in the Probate Court of Spartanburg, in the case entitled Ralph K. Carson, as administrator of Edmond Cooley, deceased, v. Emeline Cooley, John S. B. Cooley, Caroline Kimbrell, Martha Jane Kimbrell, et al., which was a petition on the part of Carson, administrator of Edmond Cooley, deceased, to sell this tract of land as his intestate property for the payment of his debts, one of which for a small amount was in judgment.

The record on its face was entirely regular. It represented that there were debts of the intestate unpaid; that the personalty was insufficient to pay the debts; and prayed that the land might be sold in aid of the personalty. All the heirs were named as parties in the summons; one was a minor, and he had a guardian ad litem appointed. The summons was entered May 8, 1877, in the sheriff's office, and had upon it the affidavit of the deputy sheriff, C. W. Mitchell, “that he had served the summons and complaint in this action on the defendants by delivery to them personally, and leaving with them copies of the same, on the 14th and 15th May, A. D. 1877, and that he knows the persons so served to be the ones mentioned and described in the summons as Emeline, John S. B., and Jefferson D. Cooley, M. J. and C. Kimbrell, and Teresa Oliver, the defendants therein,” &c. All the parties made default, and, after the proper time, George N. Nichols, Esq., probate judge, on July 13, 1877, after stating in his judgment “that the persons named as defendants had been duly served and made default,” ordered the land to be sold for the purposes aforesaid; and being offered for sale on October 1, 1877, was bid off by one William Bush for $210, which was paid and applied to the debts of the intestate. The sheriff executed title to F. M. Trimmier and William Bush, who afterwards made a conveyance to the defendant, Alfred Malone.

[24 S.C. 400]

In reply, the plaintiff proposed to show by the testimony of Martha Jane Kimbrell, one of the children of Edmond Cooley, that she was never personally served with summons in the aforesaid proceeding in the Probate Court, under which the land was sold. Objection was made that the record, regular in form, could not be contradicted in a collateral manner. The testimony was admitted, and Mrs. Kimbrell testified that, “so far as she could recollect, she was never served with any papers.” The plaintiff, also against the protest of defendant, was allowed to offer in evidence the sheriff's book, which had opposite the name of Mrs. Kimbrell the word “left.” The plaintiff was also allowed, in reply, to offer a deed to himself from M. J. Kimbrell and other children of Edmond Cooley, bearing date after the land was ordered to be sold by the probate judge, viz., September 17, 1877-to which defendant excepted.

Upon the charge of the judge, the jury found for “the plaintiff 2-15 of the land in dispute.” The defendant appeals to this court on various grounds, which need not be set out here, for the reason that they are all substantially covered by the requests to charge, which were refused. The defendant made the following requests to charge:

I. “That the judgment record from the Probate Court is conclusive upon the parties and their privies of every fact therein adjudicated.

II. “That said record establishes conclusively that Edmond Cooley died seized and possessed of the said land.

III. “That the title of Mrs. Emeline Cooley and the children of Edmond Cooley was taken away by said decree and vested in the purchaser at the sale.

IV. “That Mrs. Emeline Cooley and the other parties in said probate record could not convey any right or title to said land to George Turner, after said judgment was rendered.”

The judge charged the jury that the original deed of Edmond Cooley to his wife in 1864 was void under the law as it then stood. And as to the record of the judgment from the Probate Court in the case of Carson, administrator, v. Emeline Cooley et al., he charged that all the parties, who were legally summoned in that proceeding, were bound by the judgment and sale under

[24 S.C. 401]

it, and had not the right afterwards to sell and convey the land; that the record of that proceeding, regular in form, raised a presumption that all the defendants were legally summoned, and if so, although they made default, they were in effect before the court and bound by the judgment; that presumption was not, however, conclusive, but might be rebutted, and it was for them to say, under the proof, whether Mrs. Martha Jane Kimbrell was legally summoned, and if not, the judgment was not binding on her, and her deed afterwards made carried her interest as distributee in the land to the plaintiff.

There is really but one question in the case, and that is as to the force and effect of the judgment and order of sale in the...

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38 practice notes
  • Cannon v. Haverty Furniture Co, No. 14189.
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1935
    ...106 S.C. 486, 91 S. E. 796; Darby v. Shannon, 19 S.C. 526; Hunter v. Ruff, 47 S.C. 525, 25 S.E. 65, 58 Am.St.Rcp. 907; Turner v. Malone, 24 S.C. 398; School District v. Fowles, 87 S.C. 552, 70 S.E. 315; Hendrix v. Holden, 58 S.C. 495, 36 S.E. 1010; McCullough v. Hicks, 63 S.C. 542, 41 S.E. ......
  • Piedmont Press Ass'n v. Record Pub. Co, No. 12869.
    • United States
    • United States State Supreme Court of South Carolina
    • March 26, 1930
    ...infirmities are apparent by an inspection of it. Finley v. Robertson, 17 S. C. 435; Tederall v. Bouknight, 25 S. C. 275; Turner v. Malone, 24 S. C. 398. "A direct attack is made by motion on notice in the same case with the same parties. Crocker v. Allen, 34 S. C. 452, 13 S. E. 650, 27 Am. ......
  • Scott v. Newell, (No. 12455.)
    • United States
    • United States State Supreme Court of South Carolina
    • May 31, 1928
    ...infirmities are apparent by an inspection of it. Finley v. Robertson, 17 S. C. 435; Tederall v. Bouknight, 25 S. C. 275; Turner v. Malone, 24 S. C. 398. A direct attack is made by motion on notice in the same case with the same parties. Crocker v. Allen, 34 S. C. 452, 13 S. E. 650, 27 Am. S......
  • First Carolinas Joint Stock Land Bank Of D.C. v. Knotts, No. 14823.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 1939
    ...A collateral attack upon a judgment has been defined to be "one in an action other than that in which it was rendered." Turner v. Malone, 24 S.C. 398; Darby & Co. v. Shannon, 19 S.C. 526. The[1 S.E.2d 805]general rule is that a judgment may be attacked collaterally only when its defects and......
  • Request a trial to view additional results
38 cases
  • Cannon v. Haverty Furniture Co, No. 14189.
    • United States
    • United States State Supreme Court of South Carolina
    • December 10, 1935
    ...106 S.C. 486, 91 S. E. 796; Darby v. Shannon, 19 S.C. 526; Hunter v. Ruff, 47 S.C. 525, 25 S.E. 65, 58 Am.St.Rcp. 907; Turner v. Malone, 24 S.C. 398; School District v. Fowles, 87 S.C. 552, 70 S.E. 315; Hendrix v. Holden, 58 S.C. 495, 36 S.E. 1010; McCullough v. Hicks, 63 S.C. 542, 41 S.E. ......
  • Piedmont Press Ass'n v. Record Pub. Co, No. 12869.
    • United States
    • United States State Supreme Court of South Carolina
    • March 26, 1930
    ...infirmities are apparent by an inspection of it. Finley v. Robertson, 17 S. C. 435; Tederall v. Bouknight, 25 S. C. 275; Turner v. Malone, 24 S. C. 398. "A direct attack is made by motion on notice in the same case with the same parties. Crocker v. Allen, 34 S. C. 452, 13 S. E. 650, 27 Am. ......
  • Scott v. Newell, (No. 12455.)
    • United States
    • United States State Supreme Court of South Carolina
    • May 31, 1928
    ...infirmities are apparent by an inspection of it. Finley v. Robertson, 17 S. C. 435; Tederall v. Bouknight, 25 S. C. 275; Turner v. Malone, 24 S. C. 398. A direct attack is made by motion on notice in the same case with the same parties. Crocker v. Allen, 34 S. C. 452, 13 S. E. 650, 27 Am. S......
  • First Carolinas Joint Stock Land Bank Of D.C. v. Knotts, No. 14823.
    • United States
    • United States State Supreme Court of South Carolina
    • February 14, 1939
    ...A collateral attack upon a judgment has been defined to be "one in an action other than that in which it was rendered." Turner v. Malone, 24 S.C. 398; Darby & Co. v. Shannon, 19 S.C. 526. The[1 S.E.2d 805]general rule is that a judgment may be attacked collaterally only when its defects and......
  • Request a trial to view additional results

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