Sanders v. Price

33 S.E. 731, 56 S.C. 1

• Court: Supreme Court of South Carolina
• Decided: July 24, 1899
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Jones.

These three cases were heard together. Each action is by the same plaintiffs for the partition of a tract of land, plaintiffs claiming as heirs at law of B. S. Porter, deceased. The defendant in each case claims title under a decree for sale of said land as the property of B. S. Porter’s estate, under partition proceedings in the case of Porter et al. v. Porter et al., in which, as shown by the record, the plaintiffs in this action appeared as parties plaintiff by their attorney, C. E. Robinson, Esq. This record was introduced in evidence by plaintiffs in this case. Then, over defendant’s objection, plaintiffs testified that they never employed Mr. Robinson, or authorized any one to employ him, and did not know their names were being used in the action for the sale of the lands. Upon this testimony the Circuit Court held the proceedings and judgment in Porter v. Porter void as to plaintiffs, and so decreed for partition in their favor.

1 We think the Circuit Court erred. The proceedings in the case of Porter v. Porter, under which the defendants claim title, were regular on their face. The record disclosed no jurisdictional defect, as the Court had undoubted jurisdiction of the subject matter of the suit, and it appeared on the Record that plaintiffs were parties duly represented by an attornew at law. In this State the law does not require, nor is it customary, that attorneys, claiming to represent parties, file warrants of attorney. When an attorney appears on the record for a party, a presumption arises that he appears by authority. Bailey v. Boyce, 5 Rich. Eq., 200; Latimer v. Latimer, 22 S. C., 263.

2 The judgment in Porter v. Porter is not void but merely voidable, for the alleged jurisdictional defect is not manifest from an inspection of the record -(which presumptively shows the contrary), but is only made to appear by evidence de hors the record. Such judgment being merely voidable, is not subject to collateral attack, and must be held as valid and conclusive until set aside by a direct proceeding instituted for that purpose in that cause. Turner v. Malone, 24 S. C., 404; Crocker v. Allen, 34 S. C., 457; Gillam v. Arnold, 35 S. C., 613; Martin v. Bowie, 37 S. C., 114; Prince v. Dickson, 39 S. C., 480; Hankinson v. R. R. Co., 41 S. C., 18; Hunter v. Ruff, 47 S. C., 552. These actions cannot be considered such direct proceedings brought for the purpose of impeaching the judgment in question. It follows, also, that the parol testimony upon which the Circuit Court relied in contradiction of the 3 record was incompetent in these actions. Parr v. Lindler, 40 S. C., 197. The judgment under which the defendants claim title, until set aside in a proper proceeding, is a complete defense to plaintiff’s action for partition, and should have been so held by the Circuit Court.

The judgment of the Circuit Court is reversed.