Ware v. Henderson
| Decision Date | 22 October 1886 |
| Citation | 25 S.C. 385 |
| Parties | WARE v. HENDERSON. |
| Court | South Carolina Supreme Court |
1. A question of jurisdiction may be first raised in this court and is not waived by a failure to make the objection in the court below.
2. The Court of Common Pleas of Abbeville had no jurisdiction to render judgment against an administrator (resident in Greenville) of an intestate (also resident in Greenville) for an account of his administration of an estate of which he had been appointed receiver in Abbeville, where the estate was located.
3. Cause remanded, with leave to apply for a change of venue .
Before PRESSLEY J., Abbeville, April, 1885.
The opinion sufficiently states the case.
Messrs. Stokes & Irvine and Perrin & Cothran , for appellants.
Messrs. W. O. Bradley and W. H. Parker , contra.
This action was commenced on August 24, 1883, in the County of Abbeville, against the defendant as administratrix, with the will annexed, of E. S. Irvine, deceased, and as his legatee and devisee, for an account of the estate of the plaintiffs which was in the hands of the said E. S. Irvine as receiver, in which judgment is demanded against the defendant, as well as such administratrix, as legatee and devisee, on account of assets descended, for any balance that may be found due upon such accounting. The said E. S. Irvine, though appointed receiver in the County of Abbeville, where the estate placed in his charge was located, and where he made his returns as receiver, was a resident of Greenville County, and so continued up to the time of his death, and all his real estate is located in the last mentioned county. The defendant was, at the time of the commencement of this action, and is yet, a resident of the County of Greenville, where she qualified as administratrix, made her returns as such and received her final discharge, upon her ex parte application for that purpose, though she undertook to make a final return and settlement of the accounts of her testator as receiver before the judge of probate for Abbeville County.
The case was heard by Judge Pressley while holding the Court of Common Pleas for Abbeville County, who rendered a judgment in favor of the plaintiffs, from which the defendant appeals upon several grounds affecting the merits, and also upon the ground that the court in Abbeville had no jurisdiction of the case against the defendant, who is a resident of the County of Greenville. This question of jurisdiction does not seem to have been raised in the Circuit Court, and therefore the Circuit Judge made no ruling upon it. But, as has been frequently held, a question of jurisdiction may, for the first time, be raised in this court, and therefore we must first determine that question before we can look into the merits; for if it shall be determined that the court which undertook to render judgment in this case had no jurisdiction of it, then the so-called judgment is a mere nullity, and there would be no necessity or propriety for us to inquire into the reasons upon which it was based.
The question is, could the court in Abbeville take jurisdiction of this case against the defendant, who is a resident of Greenville, unless the place of trial had been changed to the County of Abbeville by an order of the court under section 147, of which there is no pretence in this case? The code, after providing that certain specified actions, of which this is not one, must be tried in certain places, proceeds, in section 146, as follows: " In all other cases the action shall be tried in the county in which the defendant resides at the time of the commencement of the action; *** subject, however, to the power of the court to change the place of trial in the cases as hereinafter provided." It will be observed that the language used in these sections of the code in regard to the place of trial is of an imperative character-" must be tried" in sections 144 and 145, and " shall be tried" in section 146-and we do not see by whet authority a court can disregard such an imperative mandate from the law-making power. This language clearly implies that a case cannot be tried elsewhere than in the place appointed for the purpose, unless the place of trial be changed under section 147 of the code; and therefore if tried in the wrong county, the trial and the judgment entered therein are nullities for want of jurisdiction.
This has been distinctly held in one case (Trapier v Waldo , 16 S.C. 276[1] ) and very plainly intimated in another (Steele v. Exum , 22 S.C. 276), where the exact point did not arise. For in Trapier v. Waldo , while the court held that the court in Charleston had acquired jurisdiction over the persons of those who had been made parties to a case for the foreclosure of a mortgage of real estate lying in Georgetown County, prior to the repeal of the first paragraph of section 149 of the old Code, yet, as to parties who were brought in by amendment, subsequent to such repeal, it could not take jurisdiction and the judgment as to them was therefore void. (Note .- In examining this case it will be necessary to bear in mind that the sections of the code are not now numbered as they were when the opinion in Trapier v. Waldo was filed.) So in the case of Steele v. Exum, supra , the Chief Justice uses this language: " It may be true, no doubt it is, that so far as the trial of the cause upon its merits is concerned, that court had no...
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