Cothran v. Knight

25 S.E. 142, 47 S.C. 243, 1896 S.C. LEXIS 118

Opinion

The opinion of the Court was delivered by

Mr. Justice Pope.

This, action was instituted on the 29th day of November, 1893, for the recovery of the possession of personal property and damages for the unlawful detention thereof. It has been in this Court once before. Knight et al. v. Cothran, 45 S. C. It came on for a trial, the second time, in the Court of Common Pleas for Green-ville County, in this State, before Judge Benet and a jury, at the November, 1895, term of Court. Verdict was rendered for defendant. After judgment was rendered thereon, an appeal was taken to this Court. The charge of the Judge and the exceptions thereto will be reported.

It seems to us that the fundamental and controlling issue here may be stated in the question: Were the defendants, respondents, justified in seizing the property of the plaintiff, appellant, by the judgment and execution in the case of J. E. Knight, as plaintiff, against J. R. Cothran, as defendant? Appellant’s attorney in his argument virtually admits this to be true, for he there says: “If said process was valid and the defendants were lawfully acting thereunder, then we admit their taking was lawful; otherwise, we insist they were trespassers.” This being so, we shall pass directly to this question. In the year 1893, the plaintiff, Cothran, and the defendant, Knight, were tenant and landlord, respectively. On the 23d day of November, 1893, Knight, the landlord, having a debt due to him by his tenant, Cothran, amounting to $64.78, and being apprehensive of the loss of his debt by Cothran’s removing or disposing of his property, applied to William Scott, as the trial justice for Dunklin Township, in the county of Greenville, in which both the parties lived, and where the property was located, to bring suit for said $64.78 against Cothran. On that day Knight made an affidavit that Cothran was due him “the said sum of $64.78 on an account for money and merchandise procured to be used by John R. Cothran in the production of his crop in Greenville County in the year 1893; that he has instituted suit upon the same, but is fearful that the delay of twenty days will occasion the loss of debt by the said John R. Cothran removing or disposing of his property.” Thereupon, William Scott, the trial justice, issued his summons to John R. Cothran, requiring him to appear before said trial justice, at his office in Dunklin township, on the 23d day of November, 1893, at 10 o’clock A. M., to answer to the said complaint, or otherwise judgment would go against him by default. Upon default and after proof by plaintiff of his claim, judgment was rendered by said trial justice against defendant for $64.78 and costs. On the same daj' execution was issued, directed to any lawful constable, requiring him to seize the property of Cothran to satisfy said judgment, and on the same day the constable, the defendant, R. B. Coker, seized the personal property now in dispute, and, after fifteen days advertisement, sold the same at public outcry for the sum of |60.48. But within the five days after judgment, to wit: on the 27th November, 1893, the plaintiff here, Cothran, appealed from the judgment of the trial justice to the Circuit Court. The trial justice made a return as required by law, filed this return, with the other papers of the case, in the office of the clerk of the court, and when the appeal came on to be heard, it was dismissed.

In the case at bar, Cothran seeks to deny that the judgment of Knight v. Cothran was a valid judgment.

1 {a) Because, he says, upon the face of the record, it appears that the judgment in question should have been proved by the introduction of the books required by law to be kept by the trial justice, which, he claims, is the highest and best evidence of proceedings before a trial justice. The case relied upon by appellant is that' of Cherry v. McCants, 7 S. C., 224, and he claims that this case just cited is sustained by the latter case of Barron v. Dent, 17 S. C., 75; for the position that the books of the trial justice, as required to be kept by him, sec. 892 of vol. 1 of the Revised Statutes of South Carolina, p. 316, is in these words: “Each trial justice shall keep two books, the one for civil and the other for criminal cases, wherein he shall insert all his proceedings in each case by its title, showing the commencement, progress and termination thereof, as well as all fees charged or received by him, and shall produce the same when required for the inspection of the solicitor of the circuit.” * * * We learn from the opinion of the Court of Appeals in law, pronounced by Judge (afterwards Chief Justice) O’Neall, in Etters v. Etters, 11 Rich., 415, that this provision was first inserted in the act of 1839, to correct the evil which followed the allowance to executions issued by magistrates to prove judgments by such officers. It may be that section 15 of the act of 1839 had much to do with this conclusion of a divided court. This case was followed by that of Cherry v. McCants, supra; but an examination of this case as well as that of Etters v. Etters, supra, will show that in neither case was this question necessarily involved; for, in the Etter case, the magistrate, while being examined as a witness, produced the execution, but was unable to produce, at the moment, the summons and judgment, and upon objection, that he could not speak of the contents of the two last while they were in existence, the testimony was overruled. As to Cherry v. McCants, the witness was professing to speak from memory as to the contents of papers making up the record. The Circuit Judge allowed him to do so. Upon appeal, this Court held it reversible error. So that we do not feel called upon to adopt or reject what the appellant insists is the rule, because, as we shall soon show, in the case at bar, no such question need to be said to arise. Here there was an appeal from the judgment of the trial justice court to the Circuit Court, which latter dismissed the appeal. This record was introduced, and as this is so, it was not necessary to produce the trial justice’s books, which formed no part of the Circuit Court record.

2 (b) The record introduced contained the report of the trial justice, and it is next objected that this report forms no part of the record, and should not have been admitted. An examination of the Code will show that the legislature has taken a different view of this matter from that entertained by the appellant; for, in section 369 of the Code, it is provided: “To every judgment upon appeal there shall be annexed the return on which it was heard, the notice of appeal, with any offer, decision of the court, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment, which shall be filed with the clerk of the court, and shall constiUite the jtidgment roll” (italics ours). And to see how careful the law is as to this return by the trial justice, see section 362 of the Code, which makes it mandatory upon a trial justice,'when he has rendered a judgment from which an appeal is taken, to make his return and file it in the Circuit Court within ten days. Also, section 363 of the Code, which provides, if he goes out of office, nevertheless he shall make his return in the same manner and with like effect as if he were still in office. Also, section 364: If he shall remove to another county of the State, the Court may compel him to make this return. If, as we have seen, by law this return of the trial justice is made a part of the judgment roll of such appeal in the Circuit Court, we are at a loss to understand how the Circuit Judge could have ruled otherwise, when the record was introduced in evidence, than to admit the return. which was a part of such judgment roll in a cause between the same parties.

3 (<?) The appellant insists that this record on its face shows that the court of trial justice had no jurisdiction. Now, if this' were true, it would end the case; for, as the present Chief Justice, Mr. C. J. McIver, well remarked, in State ex rel. McCall v. Cohen, 13 S. C., 201: “So that if the .proceedings show upon their face a want of jurisdiction, or fail to show that which was necessary to confer jurisdiction, the whole is an absolute nullity, and it is no consequence in what way the defect is brought to the view of the Court. Duvall v. Taylor, Cheves, 5.” Having this rule as our guide, what does the record here disclose? The respondent here brought suit in a trial justice court for $64.78 against the defendant. It is admitted that both of said parties resided in Dunklin Township, in Greenville County, and that William Scott was the trial justice for that township, and that the respondent, Robert Coker, was his constable. The amount of the debt was within the trial justice’s jurisdiction, being under $100. The subject matter (being a contention between a landlord and his agricultural tenant for money and supplies to enable him to make his crop) was also within his jurisdiction. Ret us see as to the legal machinery used by the trial justice. The amount sued for being beyond the sum of $25 or upwards, the defendant is entitled to twenty days within which to answer after the summons is served. See section 88, subdivision 16, of Code of Civil Procedure. But in that same section it is “Provided, That if the plaintiff shall make out that he is apprehensive of losing his debt by such delay, and the trial justice considers that there is good reason therefor (the ground of such apprehension being set forth in an affidavit and served with a copy of the complaint), he may make such process returnable in such time as the justice of the case may require.” In this case the affidavit was made, and it satisfied the trial justice that he should make his process returnable at 10 o’clock A. M. of the day of service. In the absence of fraud or gross imposition, the law vests the trial justice with the responsibility of deciding if these requirements are met. This Court, in Cavender v. Ward, 28 S. C., 473, when considering this very question, used this language, after having, in words, sustained the Circuit Judge, who had, in his turn, sustained the trial justice in reducing the length of time to answer from twenty days to six days: “The trial justice must have considered, as he had a right to do, that there was good reason for the apprehension of the plaintiff” (italics ours.) In the case at bar, the defendant, after service, declined to attend the trial. But the appellant now insists that .the record does not show affirmatively that the affidavit was served upon Cothran at the time the complaint was served upon him. It is true, that the affidavit of Robert Coker, the constable, is silent on this point when he swears as to the service of the complaint upon the defendant. The statute does not require that such service of the affidavit shall be made to appear by the affidavit of the constable. Yet in the return of the trial justice he states as a fact that such affidavit was served upon the defendant, Cothran, and, as we have already announced, this return of the trial justice is a part of the record introduced in evidence at the trial of this case before Judge Benet. We are constrained to hold that the trial justice thus acquired jurisdiction of the person of Cothran, as he already had of the subject matter. When this conclusion is reached, all difficulties vanish so far as the exceptions of the appellant are concerned; for, according to the very admission of appellant’s counsel (which admission we have already quoted), if the judgment of Knight v. Cothran was valid, the main difficulty disappears.

4 So far as the legality of the acts of the constable are concerned, it is admitted by the appellant that Robert Coker was the constable of that township. He levied upon such property as is now in contention, under the execution of the trial justice, whose judgment was affirmed by the Circuit Court; for the trial Judge, Judge Benét, found that the appeal was dismissed, and there is no exception before us as to this finding of the Circuit Judge on that point. He sold the same after fifteen days public advertisement as required by law. Unquestionably the Circuit Judge has properly stated the rule, that, except for want of jurisdiction, judgments, as between parties or their privies, cannot he attacked collaterally. Turner v. Malone, 24 S. C., 398, and other cases decided by this Court on the same line. '

5 Again, before closing, we ought to dispose of the first exception, relating, as it does, to an alleged error on the part of the Circuit Judge in refusing the motion of the plaintiff, appellant, to amend his complaint, at the trial, by striking therefrom all the plaintiff’s allegations as to the judgment, &c., of Knight v. Cothran, The Code is quite liberal as to amendments, yet when a litigant waits until after he has been successful in his appeal to the Supreme Court, and after trial is entered-upon, to make his motion to- amend, we agree with the Circuit Judge, “he comes too late.” 1 A. & E. Ency. of Law., pp. 354, 555; Trumbo v. Finley, 18 S. C., 305; Stallings v. Barrett, 26 S. C., 474, and other cases of our own.

We must overrule all of these exceptions.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.