Robertson v. Blair & Co.

34 S.E. 11, 56 S.C. 96

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

1 These three cases, growing out of the same facts, and depending upon the same principles, were heard and will be considered together. A motion was made before his Honor, Judge Gage, at September term, 1898, of the Court of Common Pleas for Fairfield County, to vacate the judgments entered in each of said cases upon the ground that the defendant, L. M. Blair, was a minor at the time said judgments were entered, and that no guardian ad litem was appointed to- represent him in the actions in Which said judgments were obtained. The facts as set forth in the moving papers and in the “Case” are undisputed, and may be stated as follows: The actions were commenced by the plaintiffs respectively by summons and complaint issued on the 20th of August, 1891, and served on the defendants, personally, on the 27th of August, 1891, as appears by the endorsements on each summons. These actions were based upon money demands alleged to be due the plaintiffs respectively for goods sold and delivered by them to the defendants, L. M. Blair & Bro., a copartnership composed of the said'L. M. Blair and his brother, J. E. Blair. No notice of an application for the appointment of a guardian ad litem for the defendant, L. M. Blair, was served, and no petition for the appointment of a guardian ad litem for said L. M. Blair was ever filed, and no1 order for the appointment of such guardian ad litem was ever made. No answers having been filed by either of the defendants, orders for judgments by default were endorsed on the complaint in each of said actions, on the 3d of October, 1891, and such judgments were entered on the 9th of October, 1891. The defendant, L. M. Blair, was born on the 14th of January, 1871, and was, therefore, a minor at the time of the. recovery of said judgments, though this fact was not .then known to' the plaintiffs, and only known now from the statements made in the affidavits in support of the motion to vacate the judgments ; the fact that the other defendant, J. E. Blair, was sui juris when the judgments were recovered, is not disputed, and, in fact; is admitted by his affidavit. L. M. Blair says, in his first affidavit, in support of his motion to> vacate the judgments, “that he has a good defense to the alleged cause of action in said suit, which has not been made in his behalf by reason of his not being represented by guardian ad litem in said suit;” but he does not state what is such defense, nor the facts upon which it is founded, nor does he state that he has fully and fairly stated the same tO' his counsel, and has been advised by him that he has a good defense. In his second affidavit, this defendant, L. M. Blair, says: “that the first information he-had of the existence of the said judgment was in the month of April, 1898 (which from other statements made in the moving papers appears to have been on or about the 7th of April, 1898), when he received a letter from the branch office of Bradstreet Mercantile Agency in Charleston, S. C., demanding' payment of said judgment; that thereupon deponent went to Winnsboro' and examined the records, and found the said judgment on record in the office of the clerk of court; that up to the time he received the letter above mentioned, he did not know of said judgment, and was surprised to learn of the same; that he thereupon immediately consulted with his attorney as to- the proper steps to be released from said judgment, and to have the same set aside and declared null and void.” But the record before us shows that no. step in this direction was taken until nth of August following, though it is due to. the appellant to say that this delay may have been due to the negotiations into which he entered with the attorney for plaintiffs looking to a compromise of these judgments which proved to be abortive. What passed between these parties in the course of these negotiations is fully set out in the “Case,” but need not be stated here, as it is contrary to the policy of the law to< allow statements made in the course of negotiations looking to- a compromise to- be offered in evidence against the party making them, if the effort to1 compromise proves abortive, r Greenlf. on Ev., sec. I92.

• Upon the facts thus substantially stated, the Circuit Judge passed an order refusing the motions to vacate the judgments, from which this appeal has been taken upon the several grounds set out in the record, and the respondents, according to the proper practice, have given notice that they will ask this Court to sustain the order of Judge Gáge upon the additional grounds set out in the record. A copy of the order, together with the grounds of appeal, as well as the additional grounds upon which the Court is asked to sustain the order appealed from, should be embraced in the report of this case by the Reporter.

■.We do not propose to. consider these various grounds seriatim, but will rather confine our remarks to what we regard as the controlling questions in the case.

2 In the first place, we may remark that there is nothing on the record of these judgments to show any jurisdictional defect. - On the contrary, these records show that the Court not only had jurisdiction of the subject matter (as to which there is no controversy), but also1 of the persons of these defendants; for the Code, sec. 148, provides that “Civil actions in the Courts of record of this State shall be commenced by service of a summons;” and in sec. 160 it is declared that: “from the time of the service of the summons in a civil action, or the allowance of a provisional remedy, the Court is deemed to have acquired jurisdiction and to have control of all the subsequent proceedings.” Now as the conceded fact is that it appears on the record that both of these defendants were personally served with the summons and complaint on the 27th.of August, 1891 — more than twenty days before the judgments were rendered — it is very clear that the Court not only had jurisdiction of the subject matter, but had also' acquired jurisdiction of the persons of both defendants; for although it now appears that one of these defendants — L..M. Blair — was a minor at the time, yet as it also appears that he was over the age of fourteen years, and was properly made a party by personal service of the summons, as provided by subdivision 4 of sec. 155, of the Code, there can be no doubt that the-Court thereby acquired jurisdiction of his person. It follows, therefore, that when a judgment has been rendered against an infant in an action in which the Court has acquired jurisdiction of the person of the -infant by the service of the summons upon him personally, such judgment is not void even though no guardian ad litem shall have been appointed for the infant, but is mereliy voidable. This view is supported by authority both here and elsewhere. In xo Ency. of PI. & Prac., 630, it is said, in speaking of such a judgment: “The judgment is merely erroneous; it is voidable but not void, and until set aside in a proper proceeding for that purpose, it is valid and binding.” To- the same effect see the same volume of that valuable work, page 632, where it is said: “The omission to- appoint a guardian ad litem does not affect the jurisdiction -of the Court.” And again at page 634, where it is said: “If the Court has juris diction of the parties and the subject matter, irregularities in the appointment, or even the fact that no appointment of a guardian ad litem was made, do not, as has been seen, render the judgment void, and being merely errors or irregularities, thej'- may be cured or waived.” And at page 726 of the same volume, it is said that this is true even when the judgment is by default. 3 So, also, in Finley v. Robertson, 17 S. C., 435, it was held that the mode prescribed by statute* — the Code — for making infants parties to an action, to wit: by personal service of the summons, where, as in this case, the infant is over the age of fourteen years, must.be strictly followed, or otherwise the Court will not obtain jurisdiction of the person of the infant. Now while the writer of that opinion does go on to say that: “Equal care must be observed in the appointment of a guardian ad litem, the prerequisities to which appointment are likewise clearly enacted,” yet that case does not hold, as seems to be supposed, that the appointment of a guardian ad litem is necessary to enable the Court to acquire jurisdiction of the person of the infant. It only holds that the appointment of a guardian ad litem in the mode prescribed by the Code, is necessary to relieve the judgment from any imputation of error in rendering the same. If there could be any doubt of this, such doubt is dispelled by the subsequent case of Genobles v. West, 23 S. C., at pages 166-7, where it was held that after the Court had acquired jurisdiction of the person of an infant, by the personal service of. the summons, any errors or irregularities subsequently occurring cannot affect the question of jurisdiction. See, also, Riker v. Vaughn, 23 S. C., 187, and Tederall v. Bouknight, 25 S. C., 275. The cases of Bulow v. Witte, 3 S. C., 309; Walker v. Veno, 6 S. C., 459; McCroskey v. Parks, 13 S. C., 92, and Rollings v. Brown, 37 S. C., 345, together with other older cases, have'been or may be cited to show that the appointment of a guardian ad litem was necessary to- enable the Court to acquire jurisdiction of an infant defendant, cannot be applied to this case, for the reason that in all those cases the question was whether the Court had acquired jurisdiction of an infant defendant in proceedings instituted prior to the adoption of the Code of Procedure; where, as it is said, there was no statute or decision prescribing the mode in which infants could be made parties before the Code — a circumstance which was pointedly referred to- by Mr. Justice McGowan, in delivering the opinion of the Court in Tederall v. Bouknight, supra, and was again mentioned in Rollings v. Brown, supra. Now, however, when, as in this case, the question arises, as to- whether the Court had acquired jurisdiction of the person of an infant defendant in a proceeding instituted since the adoption of the Code, which especially prescribes what shall be necessary in order to- enable the Court to acquire jurisdiction of the person of an infant defendant,. the question must be determined by those provisions, without regard to what may have formerly been the rule. As we have seen, looking to- those provisions, we are unable to find any jurisdictional defect in the judgments here in question. On the contrary, there is nothing oh the record to show any defect therein, and hence they cannot be regarded as void.

4 Our next inquiry is whether it has been shown, by evidence aliunde, that they are voidable. The only defect alleged is that one of the defendants — -L. M. Blair — was a minor at the time the judgments were rendered, and that there was no guardian ad litem appointed torepresent him. The fact that he was a minor does not appear upon the record, though that fact has been satisfactorily shown by the affidavits submitted in support of the motion. Nor does the fact that there was no guardian ad litem appointed - to represent him appear upon the record, though that fact has likewise been made to appear satisfactorily. This, therefore, shows that there was error in rendering the judgments in question, for the Code, in sec. 136, provides that when an infant is a party, he must appear by guardian ad litem. This renders these judgments voidable upon a proper proceeding and satisfactory showing for that purpose; and the only remaining question is, whether the showing' made is sufficient to require the Court to' vacate said judgments. There is no doubt that this — a motion in the cause — is a proper mode of proceeding, and the inquiry is narrowed down to' the question whether the showing made is sufficient to require the Court to* grant the relief asked for. As is said in io Ency. of PL & Prac., 704: “An infant has in general no* absolute right to avoid a judgment or decree 5 against him, and even an irregular judgment will not be vacated as of course.” To same effect see Freeman on Judgts., secs. 151 and 513; Black on Judgts., sec. 193. The case of Syme v. Trice, 1 S. E. Rep., 480 (96 N. C., 243), was in some of its features very much like the present. There the motion was to vacate a judgment obtained against a minor, a youth of eighteen years of age, not known to be a minor at the time, though that fact was after-wards made to appear. The motion was refused, the Court saying-: “That he was an infant served with process, did not render the judgment as to* him void. At most, it was only irregular and voidable (citing authorities). While the Court will always be careful of the rights of infants, it will not in all cases set aside irregular judgments against them as of course. It will not do so where it appears from the record or otherwise, that the infant suffered no* substantial injustice; especially it will not when the rights of third per-ties without notice have supervened.” It is true, that in the case just referred to*, the rights of third persons, who* had bought at the sale made under the judgment sought to be set aside, were involved, while 'here such is not the case, but still, it seems to us, that the principles upon which the Court proceeded are applicable here. But we are not without authority in our own State on this point. In Haigler v. Way, 2 Rich., 324, the Court, after holding that a judgment obtained against an infant, who did not appear by guardian, is erroneous, g'oes on to* say that the Court is not bound, after the infant has attained his majority, to* set aside such a judgment upon the mere fact that he was an infant when it was obtained, but may consider lapse of time, the conduct of the defendant, and other circumstances, as having confirmed the judgment or rendered the interference of the Court improper. In the lig'ht of these legal principles, let us proceed to examine the facts of this case as disclosed by the moving papers. Here was a young man, within a very few months of attaining the full age of twenty-one years, engaged in a mercantile business in partnership with his brother, who. is conceded to have been of full age, who1 buys from the several plaintiffs goods, wares and merchandize appropriate to. be used in such mercantile business, and when he, with his partner, is sued for the price of such goods, sets up no defense, not even the fact that he was a minor and, therefore, not legally liable, but allows judgment to> go. by default. Things remain in this condition for a period of nearly seven years, when, being- called upon to pay, he then, as he says, for the fir$t time, learns that judgments have been recovered against him, and after ineffectual efforts to compromise, institutes these proceedings to vacate these judgments — not upon the ground that the debts upon which the judgments rested were unjust, or not due, nor upon the ground that he was not duly served with the summons by which the actions were commenced, but solely upon the ground that no guardian ad litem had been appointed to represent him, although he did not see fit to avail himself of the privilege accorded to him by the law, of applying for the appointment of such guardian ; and relies entirely upon the failure of the plaintiffs to apply for such appointment, upon his neglect to. malee such application — although there is not only no evidence that the plaintiffs either knew or had any reason to. suspect that 'he was a minor, but, on the contrary, the affidavits show that they did not know he was a minor, and the circumstances tend to show that they had no1 reason to suspect that such was the fact, for he was then a grown man, within less than four months of attaining- the full age of twenty-one years, engaged in business which held him out h> the world as a person of full age. Then, too, his failure to take any step to relieve himself of these judgments for a period of nearly seven years, is a circumstance which does not recommend his claim to the favorable consideration of the Court. True, he says he did not know of the existence of these judgments until a comparatively short time before these proceedings were instituted, yet he does not and cannot deny that he was served with the summons but a -very few months before he attained his majority, and, therefore, as matter of fact, he knew that he was sued, and the terms of the summons fully informed him what would be the consequence if he failed to answer; and while, as matter of law, he might not have been bound thereby so long as his minority continued, yet when he, very soon afterwards, came of age, he must have known 6 that judgment had gone against him. Here was an act done in a public office to> which he had full access, and the rule of law is that an-act done in a public office, open for the information of parties interested, must be taken notice of by them. Payne v. Harris, 3 Strob. Eq., 39 — recognized and followed in several other cases: Long v. Cason, 4 Rich. Eq., 60; Pettus v. Clawson, 4 Rich. Eq., 92; Fricks v. Lewis, 26 S. C., 237; Ariail v. Ariail, 29 S. C., 84; Boyd v. Munro, 32 S. C., 249. And the later cases cited show that this rule applies even where the act doné in a public office, is not, as a matter of fact, known to the person to be affected by such notice. -From the time, therefore, that the appellant, L. M. Blair, attained the age of twenty-one years, a period of more than six years, he must, under this rule, be regarded as affected with notice that these judgments had been recovered agninst him. It seems to1 us, therefore, that the appellant, L. M. Blair, has waited too’ long after he attained full age to make this motion, and that he has entirely failed ho make such a showing as would entitle him to' the relief asked for.

7 We have not deemed it necessary to consider such of the exceptions as impute error to the Circuit Judge in some of the reasons which he assigns for his conclusion. It is too well settled to- require either argument or au thority, to show that the province of this Court is to inquire whether there is any error in the judgment or order appealed from, and not whether the reasons given for the conclusion reached are tenable. ,

The judgment of this Court is, that' the orders appealed from in each of the cases named in the title of this opinion be affirmed.