44 S.C. 383 | S.C. | 1895
The opinion of the court was delivered by
This was an action by the plaintiff against the defendants to foreclose a mortgage executed by Emma J. Mellett in favor of the Bank of Manning. The only allegation of the complaint in regard to John B. Mellett is, that he is the husband of Emma J. Mellett, and resides with her on the premises described in the mortgage. T. B. Fraser, jr., Esq., who was appointed special referee herein, made his report, in which he finds as matter of fact, that on the night of the 12th of September, 1894, one B. F. Bidgill, a deputy sheriff of Clarendon County, served the defendant, Emma J. Mellett, by leaving a copy of the summons and complaint herein with her husband, John B. Mellett, at her residence. Neither party answered, and there was judgment of foreclosure by default. The plaintiff advertised the land for sale, whereupon Emma J. Mellett filed her petition, addressed to the Honorable Í). A. Townsend, Circuit Judge, in which she prays as follows: “Wherefore your petitioner prays, that the judgment be vacated, and your petitioner be allowed to answer the complaint; that your petitioner have such other and further relief as the equities of the case present, and to your honor seems meet.”
His honor, Judge Townsend, while in the Circuit granted a rule to show cause before him at Union, S. C., on the 17th day of November, 1894, why the prayer of the petitioner should not be granted, also a temporary restraining order. On the 17th day of November, 1894, his honor, Judge Townsend, by consent of plaintiff’s and defendants’ attorneys, made an order that it be referred to T. B. Fraser, jr., special referee, to take testimony as to the service of the summons and complaint upon
It is the judgment of this court, that the order of the Circuit Judge be reversed.