Hunter v. Ruff

The opinion of the Court was delivered by Mr. Chief Justice McIver. These two cases, growing out of practically the same state of facts, and depending upon the same principles of law, were heard and will be considered together, and, for convenience, will be spoken of as one case. The facts are undisputed, and may be stated as follows: On the 22d day of December, 1887, R. S. Desportes commenced an action against the above named Cyrus [544] W. Hunter, to recover the amount due upon a note under seal, bearing date 4th January, 1871, and payable one day after the said date, by issuing a summons in the usual form. On the same day, to wit: the 22d of December, 1887, the said R. S. Desportes made an affidavit that a cause of action existed in his favor against .said Hunter; that the said Hunter was not a resident of this State, but resided in the city of Deon, in the State of Nicarauga, in Central America, and the said Hunter could not, after due diligence, be found in this State; and that said Hunter had property in this State, to wit: the land in controversy in these actions. Upon this affidavit a warrant was duly issued, on the 27th of December, 1887, and the same was duly levied on the said land, by the sheriff, on the 28th of December, 1887. On the 27th of December, 1887, an order for service by publication was duly made, and the copy summons was duly published in the Winnsboro News and Herald (a paper published in the county of Fairfield where the land in question was situated) once a week for six weeks, beginning on the 29th of December, 1887, as appeared by the affidavit of the printer of said newspaper, bearing date the 13th of March, 1888; and on the 28th of December, 1887, an affidavit of the mailing of the summons to the said Hunter, at Deon, State of Nicarauga, Central America, was «duly made. The complaint was in the usual form, and, upon an affidavit of one of the attorneys in the action of all these previous proceedings, his Honor, Judge Kershaw, on the 14th of June, 1888, granted an order for judgment in favor of said" Desportes against the said Htmter, for the amount due upon said note, together with his costs, to be adjusted by'the clerk; and on the 20th of June, 1888, judgment was duly entered in accordance with said order, a copy of which order is set out in the “Case,” and should be incorporated in the report of this case. Upon the judgment thus entered, an execution was duly issued, under which the land in question, which had been previously attached, was, after due’advertisement, offered for sale by the sheriff of Fair545 field County, on the 5th December, 1888, and was bid off by the defendant, Ruff, who, having immediately complied with his bid, received titles from the sheriff, went into possession of the land, and has since remained in possession thereof. At the time said defendant bid off the land, and paid the purchase money and went into possession, he had no notice, either actual or constructive, of any defects or irregularities (if any there be) in the said judgment and execution under which he bought. On the 16th of September, 1889, a notice, entitled, In re Desportes v. Hunter, was addressed to and served upon the said R. S. Desportes and A. P. Ruff, that the said Cyrus W. Hunter would, upon the affidavits annexed thereto, move “to set aside the order of judgment rendered against the defendant [Hunter] by alleged default in the above named case, on the day of , 188 , and the sale of the land under said alleged judgment, on the day of , 188 , and which was bought in by A. F. Ruff,” upon the several grounds mentioned in the notice, only one of which is it necessary to mention, to wit: that the said Hunter was, on the 26th of March, 1888, “and for years before, a resident of the city of Jenotepe, in the Republic of Nicarauga, where he resided with his family, and was not a resident of Deoil, as alleged in the pleadings,” and that “no notice, summons or information of said alleged suit was given to defendant.” This motion was heard by his Honor, Judge Fraser, upon the affidavits set out in the “Case,” who granted an order, on 3d December, 1891, “that the judgment and execution above referred to be set aside, for want of jurisdiction, and that the plaintiff have leave to proceed, as he may be advised.” From this order there was no appeal. These two actions, mentioned in the title of this opinion, were commenced on the 22d of May, 1893, to recover the possession of the land bid off by the defendant, Ruff, at the sheriff’s sale hereinbefore referred to, for which he received sheriff’s titles, under which he went into possession. The plaintiffs in the second action above stated seem to have [546] bought from Hunter a portion of the land, and their action is to recover the portion so bought by them, while the action of Hunter is to recover the balance of the land not sold to Buchanan and Gaillard, the plaintiffs in the other action. When Buchanan and Gaillard bought that portion of the land for which they sue, does not appear in the “Case,” though it is stated in the argument of appellant’s counsel that the conveyance from Hunter to Buchanan and Gaillard was made “after the sale to Ruff,” while in the argument of respondent’s counsel it is stated, that such conveyance was made “after the judgment and execution in Desportes v. Hunter was set aside.” But, under the view which we shall take, we do not think it material when such conveyance was made, inasmuch as there is no pretense that such conveyance was made before the alleged judgment obtained by Desportes v. Hunter was entered, or before the sheriff’s sale under which Ruff claims. A trial by jury having been waived, the cases were heard by his Honor, Judge Aldrich, wko rendered the decree set out in the “Case,” which should be iucorporated in the report of this case, wherein he adjudges that the plaintiffs in each of said actions are entitled to recover the land in controversy, together with the damages, to be ascertained by a referee appointed for that purpose. From these judgments the defendant, A. F. Ruff, appeals upon the several grounds set out in the record, which should likewise be incorporated in the report of this case. [546] We do not propose to consider these grounds seriatim, but only such questions presented by such grounds as we consider material to the case. It is very obvious that the controlling inquiry in this case is, whether the appellant, Ruff, acquired a valid title to the land by his purchase at the sheriff’s sale, and this depends upon the question whether the judgment obtained by Desportes against Hunter, together with the execution issued to enforce the same, afforded legal authority to make the sale. This question, also, depends upon two inquiries: 1st. Whether it has here [547] tofore been concluded by the order of Judge Fraser above referred to? and, if not, 2d. Whether, as an original question, such judgment is valid or void? As to the first of these inquiries, we think it is clear, from the express terms of Judge Fraser’s order, that it cannot be regarded as concluding the appellant, Ruff. No authority is needed for the proposition, that a person cannot be bound or affected by any order, decree or judgment in a case to which he has not been made a party in some one of the modes recognized by law. Now, the motion before Judge Fraser was not only a motion to set aside the judgment, but also a motion to set aside the sale made by the sheriff to the appellant, Ruff; and, as we construe the order of Judge Fraser, he, while granting the motion to set aside the judgment, declined to grant the motion to set aside the sale, upon the express ground that Ruff, not being a party to the proceeding, would not be bound thereby. He uses this language: “Except that A. F. Ruff has furnished an affidavit, to be used at the hearing of this motion, he has not otherwise been made a party to the proceedings before me.” And he adds: “I do not, therefore, see how I can, wih propriety, make any order setting aside the sale which will be binding on him.” So that it is manifest that Judge Fraser not only found as a fact that Ruff was not a party, but also distinctly adjudged that he could make no order binding upon Ruff, because he was not a party, and hence he, in terms, declined to make any such order. Even if it be conceded that Judge Fraser erred in his finding of fact, and in his adjudication in accordance with such finding, that cannot affect the present inquiry. That order, not having been appealed from, must be regarded as the law of the case, and was absolutely binding, whether right or wrong, upon any succeeding Circuit Judge. Warren, Wallace & Co. v. Simon, 16 S. C., 362. The question whether Ruff was a party to the proceeding before Judge Fraser was finally closed by the finding and adjudication 'that he was not a party thereto, and could not, therefore, be bound [548] by any order made in that proceeding; and it was beyond the power of any subsequent Circuit Judge to review or reverse that decision. We are, therefore, of opinion that Judge Aldrich erred in practically reversing the judgment of Judge Fraser as to the question whether Ruff was a party to the proceeding under which the judgment in question was set aside, and that appellant’s first and second exceptions must be sustained. It would, indeed, be a strange result to hold that a person was a party to a proceeding under which an order granted in such proceeding should be binding upon him, in face of the patent fact that the Judge who granted such order not only held that he was not a party, but, also, for that reason, declined to grant any order affecting the rights of such person. 2 The question, therefore, whether the judgment obtained by Desportes against Hunter is valid, is still an open question, at least so far as the rights of Ruff are concerned. That judgment was obtained under proceedings which, upon their face, were entirely regular, and there was nothing whatever in the record to indicate any vice or even irregularity therein. It appears from the recitals made in the order for judgment granted by Judge Kershaw, that every step, required by law as necessary to the rendition of such judgment, had been regularly taken. The only vice, or even informality, that is now suggested in that judgment is, that in mailing a copy of the summons to the said Hunter, it was addressed to him at Deon, State of Nicaragua, Central America, instead of at the city of Jenotepe, in the Republic of Nicaragua, Central America, which it is now claimed was the place of residence of said Hunter, and that he never received any copy of the summons or notice of the action. The fact that Hunter never received any copy of the summons is not, and cannot be pretended, sufficient to avoid the judgment, for our statute does not require anything of the kind; and such a requirement would, in many, if not in most cases, render a proceeding by attachment nugatory; for if a plaintiff were [549] required to show ‘that an absent debtor, residing in a distant country, or even in an adjoining State, actually received the copy of the summons mailed to him at his place of residence, under the penalty of having his judgment rendered void, it is very manifest that the salutary and necessary remedy by attachment would become practically useless. 3 The only inquiry, therefore, is, whether the mistake in mailing a copy of the summons to Hunter, at Leon, in the State of Nicaragua, Central America, instead of at the city of Jenotepe, in the Republic of Nicaragua, where it now appears that Hunter had his residence, renders the judgment so absolutely void that no rights can be acquired under it. The provision of our statute requiring “a copy of the summons to be forthwith deposited in the post office, directed to the person to be served, at his place of residence, unless it appear that such residence is neither known to the party making the application nor can, with reasonable diligence, be ascertained by him,” must, from the very nature of the case, receive a reasonable if not a liberal construction. If a creditor whose debtor, leaving property behind, has left this State and acquired a residence in a distant State — in this case in a far distant foreign country — cannot avail himself of a remedy for the collection of his debt out of the property left in this State, unless he first obtains certam knowledge of the new residence of his debtor, the remedy would in many, if not most, cases become fruitless. Indeed, the very terms of the statute show that all that is required of the creditor is “reasonable diligence” to ascertain the place of residence of his debtor. This necessarily implies inquiry from others, and warrants action upon information thus acquired. These views are supported by authority. In 16 Am. & Bng. Bncy. of Law, 820, it is said: “The notice must be mailed to the party at the address stated in the order of publication; a mailing to a different address will not be sufficient; but if the address stated in the order, or the affidavit to procure the order, is not, in fact, the correct one, judgment obtained thereon will [550] not be void, if the plaintiff acted in good faith,” citing Martin v. Pond., 30 Fed. Rep., 15, which has been examined and found to sustain fully the text. It is a decision rendered by Judge Brewer, now one of the Associate Justices of the Supreme Court,of the United States. So in Vanflet’s Collateral Attack, 482, it is said: “A copy of a summons mailed to a place where the defendant did not reside * * * by reason of which he did not get the notice mailed to him, does not make the proceeding void,” citing Martin v. Pond. In Lessee of Fowler v. Whitman, 2 Ohio St., 270, where publication for non-residents was ordered, and plaintiff was directed to mail a copy of the paper containing the notice to them, if their address was known, and the nonresidents, in an action of ejectment, offered to show that their address was known to plaintiff, who did not mail a copy to them, it was held, that as the Court, in the original suit, had found that publication had been duly made, such finding was conclusive on the non-residents. In this case Judge Kershaw, in his order for judgment, had found that a cop}' of the summons had been duly mailed to the defendant, Hunter, addressed to him at Reon, State of Nicaragua, Central America, “his place of residence.” In Weber v. Weitling, 18 N. J. Eq., 441, where a bill was filed to set aside a sale of real estate under attachment proceedings, on the ground that the defendant, who was a resident, had been sued as a non-resident, the Court held, that the foundation of the proceeding and of the jurisdiction of the Court was not the non-residence of the defendant, but the affidavit of the plaintiff’s belief of his non-residence; and the affidavit having been made in good faith, and appearing regular on its face, the Court could not declare the proceedings void. In Freeman on Judgments, sec. 126, quoted with approval in Darby v. Shannon, 19 S. C., at page 537, and again in Eason v. Witcofsky, 29 S. C., at page 246, it is said: “There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. * * * In case of an attempted service, the presumption exists that the Court considered [551] and determined the question whether the acts done were sufficient or insufficient. If so, the conclusions reached by the Court, being derived from hearing and deliberating upon a matter which, by law, it was authorized to hear and decide, although erroneous, are not void. When, in a proceeding by attachment, the ground required by the statute for the issuing of the process had been laid, and the process has been issued and executed, the jurisdiction of the Court is complete. Where there has been an insufficient publication, or an entire failure to publish the proceedings, are not so invalidated as to be made void.” Now, in the case under consideration, the presumption here spoken of has become a fact; for it is recited in Judge Kershaw’s order for judgment, that a copy of the summons was duly mailed to the defendant, at “his place of residence;” and even if such finding of fact should afterwards turn out to be erroneous, that will not render the judgment void. Inasmuch as it clearly appears that all the proceedings, leading up to the judgment under which the land in controversy was sold, were entirely regular upon their face, and disclosed no vice nor infirmity of any kind; and inasmuch as it appears from the statements in the “Case,” that Desportes, the plaintiff in such judgment, made efforts, by inquiry, to ascertain the place of residence of the defendant therein, and, in good faith, acted upon the information thus acquired, we cannot think that the fact, that it has been made to appear, since the sale by the sheriff, and since the payment of the pttrchase money by the appellant, that the information thus acquired by Desportes was erroneous, and that, in fact, the city of Jenotepe, instead of the city of Leon, was the place of residence of defendant, Hunter, can be sufficient to require the Court to declare the said judgment absolutely void, and to invalidate all proceedings thereunder, even against an innocent third person who has been induced to pay out his money, in reliance upon a judgment entirely regular upon its face, and not even indicating any infirmity of any kind in it. While it is quite true, as contended for [552] by respondent’s counsel, that the proceedings before Judge Fraser, culminating in an order setting aside the judgment, became a part of the record, yet it must be remembered that these proceedings were not even commenced until some time after the sheriff’s sale, under which appellant claims, was made; and at that time there was nothing in the record, or elsewhere, so far as the “Case” shows, to even suggest that there was any vice, or even irregularity, in the judgment. But, again, in 1 Black on Judgts.,-sec. 218, it is said: “The result deducible from a majority of the cases seems to be, that it is only when the judgment appears upon its face to have been rendered without jurisdiction that it can be considered a nullity for all purposes.” And in Freeman on Judgts., sec. 116, quoted with approval in our own case of Turner v. Malone, 24 S. C., at page 403, that author states what he considers the most approved view, as follows: “It has often been said that a judgment is void whenever the Court which pronounced it had not jurisdiction of the parties to the judgment, or of the subject matter in controversy. This is, undoubtedly, true everywhere, provided the want of jurisdiction is not controverted, or is manifest from an inspection of the record. It is also true in some of the States, even though the jurisdictional facts are asserted in the record. The weight of adjudged cases, however, sustains the proposition that the judgment of a domestic court of general jurisdiction is not void except where the Court has no jurisdiction over the subject matter of .the suit, or where, having such jurisdiction over the subject matter, it is shown by the record (italics ours) to have had no jurisdiction over the judgment defendant. * * * The word ‘void’ can with no propriety be applied to a thing which appears to be sound, and which, while in existence, can command and enforce respect, and whose infirmity cannot be made manifest. A judgment rendered without in fact bringing the defendants into Court, unless the want of authority over them appears in the record (italics ours), is no more void than if it were founded upon a mere misconception of some [553] matter of law or of fact, occurring in the exercise of an unquestionable jurisdiction. In either case the judgment'can be avoided and made Junctus officio, by some appropriate proceeding instituted for that purpose; but if not so avoided,must be respected and enforced.” See, also, Voorhees v. Bank of United States, 10 Peters, at page 478, where-Mr. Justice Baldwin, in delivering the opinion of the Court,speaking of the rights of purchasers at a sale made linder judicial process, uses this language: “The purchaser is not bound to look beyond the decree when executed by a conveyance, if the facts necessary to give jurisdiction appear on the face of the proceeding, nor look further back than the order of the Court.” So in Cooper v. Reynolds, 10 Wall., 308, in delivering the opinion of the Court, Mr. Justice Miller, speaking of a sale of property which had been attached,' uses this language: “Now, in this class of cases, on what does the jurisdiction of the Court depend? It seems to us that'the seizure of the property, or that which in this case is the same in effect, the levy of the writ of attachment on it, is the one essential requisite to the jurisdiction, as it unquestionably is in the’proceedings purely in rem. Without this the Court can proceed no further; with it the Court can proceed to subject that propertj^ to the demand of plaintiff;” and after ’speaking of the effect of a defective affidavit upon which the writ of attachment was issued, which might render the judgment reversible for error, says: “We are unable to see how that can deprive the Court of jurisdiction acquired by the writ levied upon defendant’s property. So, also, of the publication of notice. It is the duty of the Court to order such publication, and to see that it has been properly made, and, undoubtedly, if there has been no such publication', a court of errors might reverse the judgment. But when the writ has been issued, the property seized, and that property been condemned and sold, we cannot hold that the Court had no jurisdiction for want of a sufficient publication of notice.” Upon the same principle we would say that where, as in this case, there subsequently appears to have been,an [554] honest mistake in mailing a copy of the summons to the defendant, at the city of Reon, which plaintiff, after inquiry, was informed was defendant’s place of residence, instead of mailing such copy to him at the city of Jenotepe, which, it has subsequently been made to appear, was, in fact, his place of residence, cannot deprive the Court of jurisdiction over the property acquired by a levy of the attachment thereon. The comments of Justice Brown, on the case of Cooper v. Reynolds, supra, in the subsequent case of the Guaranty Trust Co. v. Green Cove Railroad Con 139 U. S., 137, cannot affect the former, because it was distinguished from the latter by the fact that, in Cooper v. Reynolds, the property in question was seized under a writ of attachment, a proceeding in z'em, while in the latter case there was no attachment. So, too, in our own case of Trapier v. Waldo, 16 S. C., 276, relied on by the Circuit Judge as well as by counsel for respondents, there was no attachment; and, moreover, in that case, the record not only failed to show that Gertrude Waldo and her infant son, Rhinelander, had been properly made parties, but rather showed to the contrary. We are, therefore, of opinion that even if the fact be that a copy of the summons was not mailed to the judgment debtor at his correct place of residence, but was mailed to him at the place which the judgment creditor, after inquiry, was informed was his place of residence, such fact did not render the judgment so absolutely void as to render all proceedings under it nullities; but, at most, only reudered the judgment voidable, and liable to be declared void when such fact was made to appear in a subsequent proceeding instituted for that purpose; but such subsequent showing cannot be allowed to1 affect the validity of any proceedings taken under such judgment before such showing has been made. Turner v. Malone, 24 S. C., at page 404; Gregg v. Bingham, 1 Hill, 302; Simms v. Slacum, 3 Cranch, 300, at least, so far as the rights of third persons are concerned. But, in, addition to this, it seems to us that the legislature, recognizing the hardship and injustice which an innocent purchaser, who [555] has bought property under a judgment regular on its face, would suffer, if the owner of such property should be allowed to come in afterwards, and by showing that there was some hidden vice in the judgment, have the same, and all proceedings thereunder, set aside, has made express provision for the protection of such purchaser from such hardship and injustice. In the third paragraph of sec. 156 of the Code of Procedure the provision is, that “the defendant against whom publication is ordered * * * may * * * upon good cause shown, be allowed to defend after the judgment, or at any time within one year after notice thereof, and within seven years after its rendition, on such term as may be just; and if the defense be successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the Court directs; but the title to the property sold under szich jzidgment to a purchaser in good faith shall not be thereby affected.'''1 The Circuit Judge holds that the saving clause, which we have italicised, inserted for the protection of innocent purchasers, was intended only for the protection of one who has purchased under a judgment obtained in a case where the judgment debtor “has been dzily and legally served by publication, over whose person the Court acquired jurisdiction, and against whom judgment has been rendered.” It would be sufficient to say that such is not the language of the statutory provision; and to give it the construction adopted by the Circuit Judge, it would be necessary to interpolate words into the statute which the legislature has not seen fit to insert therein. The section of the Code (156) in which the provision here in question is found, after providing in what cases a defendant may be made a party to an action by publication, and after providing that in such cases the Court may grant an order that service may be made by publication, and after providing that certain other things should - be done, provides, in the third paragraph of the section, that “the defendant against whom publication is ordered’’' — not that the defendant who has [556] been duly and legally served by fitiblication — may, on sufficient cause shown, be allowed to come in and defend, &c.; but that when he does so, and he seeks to assail a judgment recovered against him in his absence, he cannot be allowed to divest rights of innocent purchasers, which had vested before any assault had been made upon the judgment, which upon its face was entirely regular and free from any infirmity. We, therefore, must conclude that the Circuit Judge erred in holding that the judgment recovered by Desportes v. Hunter was so absolutely void as that the appellant, Ruff, acquired no title by his purchase at the sheriff’s sale made under said judgment. Under this view, the other questions raised in the árgument become wholly immaterial, and need not, therefore, be considered. The judgment of this Court is, that the judgment of the Circuit Court in each of the cases mentioned in the title of this opinion be reversed, and that the complaints in each of said cases be dismissed. Upon filing of petition for rehearing, remittitur stayed. Petition refused, on ground that no material fact had been overlooked, on the 30th November, 1896, and stay of remittitur revoked.