32 S.C. 503 | S.C. | 1890
The opinion of the court was delivered by
The plaintiff in her complaint alleges that on or about the eighth day of September, 1886, the defendant, Arnold, attempted to commence an action against her and Sarah G. Sheppard, by lodging a summons and complaint in the sheriff’s office for service upon her and said Sarah G. Sheppard, for the purpose of foreclosing a mortgage on a tract of land containing about 400 acres ; that under the representation made to the court in that case, that the summons and complaint therein had been duly served upon the defendants therein, and that no answer or demurrer had been put in, the said Arnold obtained a judgment by default in that case, under which the mortgaged premises were sold and bid off by said Arnold; that a report of such sale was made by the master, in which the deficiency arising from such sale was ascertained, and the same was confirmed, and the said Arnold was authorized to enter judgment for such deficiency ; that in pursuance of such order judgment was entered on the 17th of November, 1888, and execution issued thereon, under which the defendant, Arnold, has caused his co-defendant, Mann, as sheriff, to levy on plaintiff’s real estate in the town of Greenwood, whereon she resides, containing about sixteen acres, and the same has been advertised for sale under said execution; that while said proceedings were being had plaintiff was ignorant thereof; that she was never served, with the summons and complaint in the case referred to above, instituted by said Arnold, and that the court never acquired any jurisdiction of her person in that case. She therefore demands judgment that all the
Upon this complaint, duly verified, a temporary injunction ■was obtained by an order, dated 29th April, 1889. The defendant, Arnold, having filed his answer denying the material allegations of the complaint, gave notice of a motion to dissolve the temporary injunction, and this motion was heard and granted by his honor. Judge Hudson. From the order dissolving the injunction, plaintiff appeals upon the several grounds set outdn the record, which, under the view we take, need not be specifically stated.
It seems to us that even conceding every fact stated in the complaint to be true, and conceding further that the plaintiff may proceed by a separate independent action, rather than by motion in the original case (neither of which concessions, however, are we t.o be understood as making, except for the purposes of this inquiry), we do not see that the plaintiff has any ground to demand the injunction prayed for. No fact is stated imparting to the case any feature of equitable cognizance. There is no allegation that the judgment against which relief is sought was obtained through fraud, accident, or mistake; but, on the contrary, the plaintiff’s whole case rests upon the ground that the court which undertook to render the judgment never acquired jurisdiction of her person, and hence the so-called judgment was rendered without authority, and should be declared void. Nor is there any fact slated tending to show that the plaintiff is likely to suffer irreparable wrong by the enforcement of this alleged void judgment. The property levied upon is real estate, in the possession of the plaintiff, and if the defendants undertake to sell it under a void judgment, how would that injure the plaintiff? All she has to do is to forbid the sale, give notice of the defect in the judgment, and retain the possession ; and if any one chooses to purchase after this, it is difficult to understand how she could be ousted from the possession, if, in fact, the judgment can be
But, more than this, it will be observed, that the plaintiff in her complaint does not allege (what, it would seem from defendant’s answer, is a fact) that though the record of the judgment shows upon its face that she was personally served with the summons and complaint in the former case, yet, in fact, such was not the case; but, on the contrary, her allegations simply are, that defendants are about to sell her real estate under a void judgment; and this, unquestionably, affords no ground for the interposition of the equitable remedy by injunction, for even if such sale should be made, it certainly would not work any irreparable mischief to plaintiff, and, in fact, would not injure her in any way, for it would amount to nothing more than a sale without any authority whatever. It seems to us clear that even if the case be considered solely with reference to the facts stated in the complaint, the plaintiff has failed to state such a case as would entitle her to the injunction prayed for, and hence that there was no error in dissolving the temporary injunction.
As this is the only question presented by this appeal, we have confined ourselves to it, and do not desire to be regarded as intimating any^ opinion as to any of the other questions to which the argument here has been chiefly directed. Whether the plaintiff could maintain a separate and independent action to have this judgment set aside or declared void on the ground stated, or whether she' was not bound to proceed by motion in the case in which such judgment was rendered to have the record of that case, showing that she had been personally served, corrected in that respect, so as to conform to the fact as alleged by her, and whether such question could be considered in this case, unless it rvas raised by answer or demurrer, and whether the answer of defendant should be regarded as improperly verified, since it was not returned promptly on that ground, but, on the contrary, seems to have been accepted, are all questions which do not noAV properly arise, and have not, therefore, been considered. For the only question really presented by this appeal is, Avhether Judge Hudson erred in dissolving the injunction, and inasmuch as the complaint itself does not, in our judgment, state such facts as
The judgment of this court is, ¿hat the order appealed from be affirmed.
