Kaylor v. Hiller

The opinion of the Court was delivered by *395 Mr. Justice Gary. This is an action to recover the possession of certain lands described in the complaint. Lewis H. Trevett died in 1878, leaving a will, whereby he devised his whole estate to his wife during the term of her natural life, and after her death then to be divided into' four equal parts, one-fourth of which was settled in trust upon each of his granddaughters, Felicita Embleton and Josephine Embleton. After Trevett’s death, an action was instituted by Louis Paul Hiller, the executor of the will, seeking to marshall the assets and to sell the real estate to pay debts, alleging that the estate was insolvent. To this action both Felicita and Josephine Embleton were made parties. They were then minors under fourteen years of age. Their mother was dead, but there was testimony that their father then lived in the city of Columbia. The return of service on the summons was as follows: “Personally came John McCabe, who being duly sworn, sayeth on oath that he served Louis H. Embleton, George W. Embleton, Felicita Rosetta Embleton and Josephine Embleton, Martha Hiller and Mary Trevett each with copies of this summons personally, and left the same with them. “John McCabe. “Sworn to and subscribed before me, July 10, 1878. “W. S. Monteith, (l. s.) “Notary Public.” On the 6th of July, 1878, a petition was filed for the appointment of a g-uardian ad litem for said infants, in which it was stated that they had no' general or testamentary guardian, and that they resided with L. P. Hiller, the plaintiff in that action. The present action was commenced in May, 1904, twenty-six years after the land described in the complaint was sold by order of the Court. After quoting authorities in support of his ruling, his Honor, the presiding Judge, thus stated his reasons for *396 directing the jury to render a verdict, in favor of the defendant : “This is not a direct action to try to' set aside the decree on the ground of fraud or irregularity in the decree, but it is for the possession of real estate in which these parties seek to establish title to real estate as not being bound by this decree, as not having bound the parties to the action by reason of alleged irregularity, appearing on the face of the record. “Now in this case it appears in the record that the service was complete, that is complete and proper service, such as is recognized by the Court as proper service, was made. The only question upon which that service is sought to be shown to be improper is, that the absence from the State of South Carolina of the father does not affirmatively appear on the record. The record is silent on the point whether the father was in the State or not. As a complete service is shown in the absence of the father from the State, and the record being silent upon the point whether he was absent or not, and the other facts stated throughout the record tending to show that the father must have been absent from the State, I think the law will come in and presume that the father was absent from the State, and that the service was complete. It seems to me from these circumstances and the record before me, that complete service on these minors is shown, that they were proper parties to the action, that they were represented before the Court, that the case was carried through the usual course before the master, who reported upon it, and a decree rendered, and they are barred from recovery in this action; therefore, there is nothing to submit to the jury. The foreman will come forward and write the verdict, ‘We find for the defendant the land in dispute.’ ” The record shows that a copy of the summons was served upon each of the said infants; that they had no general or testamentary guardians, and resided with L. P. Hiller; and that he was the plaintiff in that action. As he was the plaintiff and the infants resided with him, *397 it was not necessary to serve a copy of the summons on him. Kennedy v. Williams, 59 S. C., 378, 38 S. E., 8. If it appeared from the record, that the infants did not have a father or mother, or that neither was in the State, there would have been a complete compliance with the requirements of the section of the Code, regulating the mode of service on infants as it stood in 1878, which is identical with section 155, subdivision 2, of the present Code, which is as follows : “If against a minor under the age of fourteen years, to such minor personally, and also to his father, mother or guardian, or if there be none within the State, then to any person having the care and control of such minor, or with whom he shall reside, or in whose service he shall be employed.” But in this, case the record is silent as to the alleged jurisdictional defect, upon which the appellants rely. In Ex parte Gray, 48 S. C., 566, 569, 26 S. E., 286, the Court says: “All presumptions must be indulged in favor of the jurisdiction of a Court of general jurisdiction. To avoid such a judgment for want of jurisdiction, the jurisdictional defects must appear affirmatively on the record.” The rule is thus stated in 1 Greenleaf on Ev., section 19: “Conclusive presumptions are also made in favor of judicial proceedings. Thus, the records of a Court of justice are presumed to have been correctly made; a party to the record is presumed to have been interested in the suit; and after verdict it will be presumed that those facts, without proof of which the verdict could not have been found, were proved, though they are not expressly and distinctly alleged in the record; provided it contains terms sufficiently general to comprehend them in fair and reasonable intendment.” In the case of Clemson College v. Pickens, 47 S. C., 511, 518, Mr. Chief Justice Mclver says: “The practical inquiry is whether the record as set forth in the ‘case’ shows on its face that the Court did not acquire jurisdiction of the person of defendant, and not whether such record is defective, in showing that all of the steps necessary to acquire jurisdic *398 tion had been taken.” The Court, in the case of Galpin v. Page, 18 Wall., 350, says: “The presumptions which the law requires in support of the judgment of Superior Courts of general jurisdition only arise with respect to jurisdictional facts, concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence, respecting the facts presumed.” The following language is used in the case of Hahn v. Kelly, 34 Cal., 391: “Undoubtedly if the record was silent as to what was done in respect to some material matter, we will presume that what ought to have been done was done. If there is no proof of what was done in obtaining service in the record, we will presume that legal service was in fact made.” The foregoing language from the last two cases was quoted with approval in the case of Rice v. Bamberg, 59 S. C., 498, 38 S. E., 209. The presumption is that those facts existed, without which the Court could not have rendered judgment. Therefore the jurisdictional defect relied upon by the appellants, to wit: that it does not appear upon the face of the record that the father was absent from the State, cannot be sustained. When it does not so appear it cannot be brought in question collaterally, but the party relying upon the defect must have recourse to a direct proceeding. Sanders v. Price, 56 S. C., 1, 33 S. E., 731. It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.