Foster v. Crawford

57 S.C. 551 | S.C. | 1900

The opinion of the Court was delivered by

Judge Watts, acting Associate Justice, in place of Justice Jones, disqualified.

These cases were heard together on appeal from a decree of his Honor, Judge Buchanan. Judge Buchanan heard the case of plaintiffs, appellants, against R. T. Crawford, defendant, respondent, by consent without a jury a,t Lancaster, at October term of Circuit Court, 1899, and it was agreed, as the facts were the same substantially in the other cases on the issues involved, that whatever decree was entered in this case should be entered in each of the other cases stated in the title. When the cause was heard by Judge Buchanan there was no dispute as to the facts of the case, and the determination of the case turned solely upon the point as to whether or not these plaintiffs, appellants, had been properly served and made parties to a suit instituted by their mother, Charlotte H. Foster, as administratrix of the personal estate of J. H. Foster, deceased, plaintiff, against Eloise Foster et al., defendants, to pay debts, partition lands, &c. It was conceded that these plaintiffs, appellants, were named in said suit as parties defendant, but it was denied that such service had been made as would make them parties to said suit and bind them by an order or decree passed therein. His Honor, Judge Buchanan, held that these plaintiffs, appellants, had been made parties to that suit, and were bound by orders and decrees therein made, and found that the legal title to the lands in question was in defendants. He found that the appellants here, who were minors and defendants in that case, were personally served by delivery of process in that case, and their mother and the person with whom they reside admitted in writing that she had been served with summons in that case, and this acknowledgment wás indorsed on the summons therein. He further held and decided that as the mother, with whom the minors lived, had knowledge of the suit, it having been- instituted by her, and she being the plaintiff therein, it was unnecessary for her to be served in order to properly bring the infants before the Court, and that service upon them was sufficient, inasmuch as she petitioned the Court and had a guardian ad litem appointed to represent them. The order of Judge Buchanan, and his reasons given for passing the same, should be incorporated in the report of this case.

From this decree of Judge Buchanan the plaintiffs appeal, alleging error: “First. That his Honor erred in holding in the case where the mother and sole parent is plaintiff in an action against her minor children, defendants, it is not necessary. that the summons in action should be served upon the parent, there being no general or testamentary guardian of said defendants. Second. That his Honor erred in bolding that it appeared upon the record that the summons in the action of Foster v. Foster et al., was served upon the mother and only surviving parent of minor defendants.”

From my view of the case, it is not necessary to consider the first ground of appeal. The record in case of Charlotte R. Foster, as administratrix, &c., plaintiff, against Eloise Foster et al., shows, by sworn return of W. McD. Brown, made on 21st of January, 1889, that he personally served the defendants in that suit, “by delivering to them personally and leaving with them copie-s of the same at‘their residence at Lancaster, S. C.,” on the 19th of Jammy, 1889, and he proceeds to name parties served, and among those named as so served are the appellants here; on the back of said same summons is the indorsement: “As the only surviving parent and protector of the infant children herein named, I do hereby acknowledge service of a copy of this summons on me for them, who were also personally served on the 19th day of January, 1889. They all reside with me. C. R. Foster.”

Later on a summons was issued to a supplemental complaint in said case, and upon the back of which we find a return of W. M. Crawford, under oath, that he served the defendants in that case “personally and leaving with each of them a copy of the same at their home at Lancaster, S. C., on the 28th day of May, 1891,” and then he goes on to name the parties served, the parties named as so served being the appellants herein. On the back of said summons to said supplemental complaint in said record is indorsed: “On the 28th day of May, 1891, as well as before and since that date, my children, the defendants, were all living with me as their mother, and as their mother and only protector I acknowledge service of this summons on me, as the mother of all who were under the age of fourteen years of age, as of that date, tó wit: 28th day of May, 1891. C. R. Foster.” After that Mrs. Foster petitioned on July 10th, 1891, for C. T. Conners, Esq., to be appointed guardian ad litem to represent the infant defendants, and he was appointed and made answer on July 13th, 1891, by T. S. Carter, also as their attorney. There is no suggestion here that any fraud has been practiced and unfair advantage taken, or that the property sold under proceedings in the case of Foster, administratrix, &c., v. Foster, brought less than its full value, at which sale it appears that Mrs. Foster, the mother of appellants, purchased the property, but the sole contention is, that Mrs. Foster was not served and return made in strict accord with terms of statute regulating how infant defendants are to be served and made parties to suits. The acknowledgment of Mrs. Foster shows that she was served on the same day with copies of summons that her children were served by the officers with summons; the acknowledgment shows that the infant defendants lived with her, the officer’s affidavit shows that their residence was Lancaster, S. C. Suppose she did not give a written acceptance of service the day she was served with the summons, what was there wrong in her acknowledging later that she had been served on that day than there is in a person serving a summons on one day and later on and on a different day making an affidavit that on a particular day named he served the summons? Mrs. Foster could not deny service on the day set out in her acknowledgment, if she attempted to do so. Then, again, if .it were necessary, the Court could allow the return to be amended so as to comply with the very strict construction asked for in this case as .to what acceptance should contain as to time, place, &c., and it would most certainly do so rather than upset sales and deprive purchasers of land paid for, when it is not even suggested that there was any fraud, wrong doing or unfairness in the sale had under the proceedings in this caset

But we think the record shows affirmatively that the infants and their mother were both served with summons, and that the judgment of the Circuit Court should be and it is affirmed. It is also ordered, that the clerk of this Court do, at the proper time, send.down the remittitur in each of the cases stated in the title, in accordance with the judgment herein announced.