34 S.C. 452 | S.C. | 1891
The opinion of the court was delivered by
This was an action brought by the
The Circuit Judge held, amongst other things which, under the view we take of the case, need not be stated, that the complaint failed to state facts sufficient to constitute a cause of action, and therefore rendered judgment dismissing the complaint. From this judgment plaintiff appeals upon the several grounds set out in' the record ; but as the fundamental question in the case, superseding all others, is whether the Circuit Judge erred in his ruling as above stated, we shall confine ourselves to that question.
Now, as it was well setted that a Court of Equity would not entertain a case asking for relief, where the party complaining had a plain, adequate, and complete remedy at law, the practical inquiry in this case is whether, under the former practice, the plaintiff would have had a plain and adequate remedy for the wrong of which she complains, by motion to the court and in the case in which the judgment in question was rendered. If she had, then she cannot maintain an action on the equity side of the court to obtain the redress sought, but must resort to the simpler and less expensive remedy by motion.
A review of the authorities will show beyond dispute that the Court of Common Pleas has always claimed and exercised the power to entertain such a motion. In Mooney v. Welsh (1 Mill Con. R., 138), the motion was to set aside a judgment on the ground that the verdict and judgment exceeded the damages laid in the writ, and it was held that the Court of Common Pleas has always exercised the power of looking into its own records, and on motion affording that remedy which is obtained by writ of error in England. In Barns v. Branch (3 McCord, 19), a motion was entertained to set aside proceedings for partition in the law court, upon the ground of want of notice to the guardian ad litem of the infant defendants, although such want of notice did-
In Poney v. Underwood (1 Hill, 263), O’Neall, J., uses this language: “Generally there can be no doubt that a court of law possesses exclusive jurisdiction over the amendment or vacation of its own judgments. This power applies most usually to matters of form or substance apparent on the face of the record. Sometimes, however, it is exercised, as between the parties, on matters out of and beyond the record; and he goes on to prescribe the mode of proceeding in such cases. To the same effect is Dial if Henderson v. Farrow (1 McMull., 292), in which Judge ONeall in terms recognizes the doctrine that a judgment may be set aside on a motion upon the ground that defendant had not been served with process. In Haigler v. Way (2 Rich., 324), it-was held that the proper mode of proceeding to set aside a judgment irregularly obtained against an infant, there having been no guardian ad litem appointed and no appearance having been entered, was by a motion in the case.
In Williams v. Lanneau (4 Strob., 27), a judgment for the amount assessed in lieu of dower was set aside on motion, upon the ground that the defendant had not been served with a copy of the summons on which the subsequent proceedings were based, the court recognizing several of the preceding cases, especially Wotton v. Parsons, and citing another very similar case, O’Neall v. Wright, which does not seem to-have been reported. To same effect see Crane v. Martin, 4 Rich., 251; Mills § Co. v. Dickson & Mills, 6 Id., 487; and Stenhouse v. Bonum, 12 Id., 620, in "which last named case the judgment was set aside on motion upon the ground of want of jurisdiction in the court which undertook to render said judgment. The case of Townsend. Arnold & Co. v. Meetze (4 Rich., 510), is not in conflict with the
These cases unquestionably establish the doctrine-that the pro per mode of proceeding to set aside a judgment prior to the abolition of the Court of Equity was by motion to the court and in the cause wherein the judgment was rendered, and therefore a bill in equity for that purpose would not be entertained by the Court of Equity, unless it contained allegations imputing to the case some features of equitable cognizance; such, for example, as fraud, accident, or mistake, or unless a discovery was demanded. See Attorney General v. Baker, 9 Rich. Eq, at pages 530-1; McDowall v. McDowall, Bail. Eq., 325. That the same practice has been recognized and followed since the Court of Equity was abolished as a separate tribunal, may be seen by reference to the cases of Southern Porcelain Manufacturing Company v. Thew, cashier of National Bank of Augusta, Georgia, 5 S. C., 5, supra; Clark v. Porcelain Manufacturing Company, 8 Id., 22; Ex parte Carroll, 17 Id., 446; Ferguson & Miller v. Gilbert & Co., 17 Id., 26 ; Darby & Co. v. Shannon, 19 Id., at page 533; Turner v. Malone, 24 Id., 398.
To these authorities in our own State may be added that of the Supreme Court of the United States, in the case of Walker v. Robbins, 14 How., 584. In that case a bill in equity was filed in the Circuit Court of the United States for the District 'of Mississippi, praying a perpetual injunction against a judgment recovered in an action at law in the same court, upon the ground, amongst others, that Walker had not been served with process in the action at law, though the record of such judgment showed on its face that Walker had been duly served. It was held that the bill could not be maintained, the court using this language : “Assuming the fact to be that Walker was not served with process (that being the undisputed evidence in the case), and that the marshal’s return is false, can the bill in this event be maintained? The respondents did no act (hat can connect them with the false return; it was the sole act of the marshal, through his
It seems to us clear, therefore, that this action on the equity side of the court cannot be sustained, where, as in this case, the complaint contains no allegations imputing to the case any features of equitable cognizance,,but rests 'solely upon the allegation that plaintiff was never served with process in the action in which the judgment in question was recovered. The fact that such judgment was recovered in an action on the equity side of the court to foreclose a mortgage, cannot affect the question. The record of the case in which the judgment sought to be set aside is complete in itself, and shows no flaw- or defect. It does not show that the defendant therein (the plaintiff here) was not served, but shows the contrary; and if it is proposed to show that the return of the sheriff was false, by evidence de hors the record, it should be done by a motion in that case; for while it stands as it is, it must be regarded as a valid judgment in any other action or proceeding. In this respect the present case differs radically from Finley v. Robertson, 17 S. C., 439, and Genobles v. West,
It cannot be said that the necessity for an injunction would be sufficient to give the Court of Equity jurisdiction; for that relief was always obtainable by a motion to stay the execution, which the authorities above cited show could have been granted by a Circuit Judge at chambers, even before the enactment of the statute expressly conferring such power, now incorporated in General Statutes as section 2115.
It seems to us, therefore, that in no viewr of the case could the action be maintained, and that there was no error in dismissing the complaint.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.