Bailey, Judge of Probate v. Cooley

Supreme Court of South Carolina

Bailey, Judge of Probate v. Cooley

150 S.E. 473, 153 S.C. 78, 1929 S.C. LEXIS 13

CourtSupreme Court of South Carolina

DecidedNovember 14, 1929

Docket12763

StatusPublished

Cited by3 cases

This text of 150 S.E. 473 (Bailey, Judge of Probate v. Cooley) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bailey, Judge of Probate v. Cooley, 150 S.E. 473, 153 S.C. 78, 1929 S.C. LEXIS 13 (S.C. 1929).

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The opinion of the Court was delivered by

Mr. ChiEE Justice Watts.

This action was commenced by service of the summons and the complaint on the defendants during the month of May, 1928. The several defendants answered the complaint and at the same time served notices of demurrer. By agreement the demurrers were heard at chambers by the Circuit Judge, Hon. M. E. Bonham. The demurrers were based upon two grounds, as therein set forth, and were sustained on the sole ground that the action constituted a collateral attack.

From the order of Judge Bonham the plaintiffs appeal to the Supreme Court, and the appeal involves the single question of practice, to wit: Can the action, as set out in the complaint, be maintained in the Court of Common Pleas, or is it necessary that direct proceeding be brought in the original action for accounting in the Court of Probate?

Judge Bonham’s order states the case, and his order will be reported. In addition to the cases cited by him, his position is sustained by the following authorities : Turner v. Malone, 24 S. C., 398; Connor v. McCoy, 83 S. C., 165, 65 S. E., 257; Bradley v. Calhoun, 116 S. C., 7, 106 S. E., 843; Wolfe v. Bank of Anderson, 123 S. C., 208, 116 S. E., 451; Ray v. Pilot Insurance Co., 128 S. C., 323, 121 S. E., 779.

*86 Fraud while forming a sufficient ground for direct attack on a judgment, does not justify a collateral attack thereon. Thus' in Van Fleet’s Collateral Attack, at page 579, it is stated: “The final settlement of an administrator or guardian is not void for fraud, nor because he allowed a fraudulent claim, nor because the report was false and fraudulent, nor because he fraudulently withheld assets and converted them to his own use, nor because the sales of property were fraudulent and made for his own benefit.” See, also, 15 R. C. L., 855.

“A party to a judgment cannot be permitted in equity any more than at law collaterally to impeach it on the ground of mistake or fraud. * * * Fraud perpetrated by a party in procuring a judgment does not render it absolutely void, but is only cause for having it declared void in a proceeding instituted for that purpose and in proper time, as between parties and privies.” Note, 79 Am. Dec., 752.

“A judgment of the Probate Court appointing a guardian, regular on its face, cannot be collaterally attacked on the ground of fraud, collusion or other matter -aliunde.” Note, 11 T. R. A., 160.

All exceptions are overruled, and judgment affirmed.

Messrs. Justices Beease, Stabeer and Carter concur. Mr. Justice Coti-iran dissents.

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The opinion of the Court was delivered by

Mr. ChiEE Justice Watts.

This action was commenced by service of the summons and the complaint on the defendants during the month of May, 1928. The several defendants answered the complaint and at the same time served notices of demurrer. By agreement the demurrers were heard at chambers by the Circuit Judge, Hon. M. E. Bonham. The demurrers were based upon two grounds, as therein set forth, and were sustained on the sole ground that the action constituted a collateral attack.

From the order of Judge Bonham the plaintiffs appeal to the Supreme Court, and the appeal involves the single question of practice, to wit: Can the action, as set out in the complaint, be maintained in the Court of Common Pleas, or is it necessary that direct proceeding be brought in the original action for accounting in the Court of Probate?

Judge Bonham’s order states the case, and his order will be reported. In addition to the cases cited by him, his position is sustained by the following authorities : Turner v. Malone, 24 S. C., 398; Connor v. McCoy, 83 S. C., 165, 65 S. E., 257; Bradley v. Calhoun, 116 S. C., 7, 106 S. E., 843; Wolfe v. Bank of Anderson, 123 S. C., 208, 116 S. E., 451; Ray v. Pilot Insurance Co., 128 S. C., 323, 121 S. E., 779.

*86 Fraud while forming a sufficient ground for direct attack on a judgment, does not justify a collateral attack thereon. Thus' in Van Fleet’s Collateral Attack, at page 579, it is stated: “The final settlement of an administrator or guardian is not void for fraud, nor because he allowed a fraudulent claim, nor because the report was false and fraudulent, nor because he fraudulently withheld assets and converted them to his own use, nor because the sales of property were fraudulent and made for his own benefit.” See, also, 15 R. C. L., 855.

“A party to a judgment cannot be permitted in equity any more than at law collaterally to impeach it on the ground of mistake or fraud. * * * Fraud perpetrated by a party in procuring a judgment does not render it absolutely void, but is only cause for having it declared void in a proceeding instituted for that purpose and in proper time, as between parties and privies.” Note, 79 Am. Dec., 752.

“A judgment of the Probate Court appointing a guardian, regular on its face, cannot be collaterally attacked on the ground of fraud, collusion or other matter -aliunde.” Note, 11 T. R. A., 160.

All exceptions are overruled, and judgment affirmed.

Messrs. Justices Beease, Stabeer and Carter concur. Mr. Justice Coti-iran dissents.

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150 S.E. 473, 153 S.C. 78, 1929 S.C. LEXIS 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-judge-of-probate-v-cooley-sc-1929.

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