Phillips &c. Co. v. Ray

43 S.C. 176 | S.C. | 1895

The opinion of the court was delivered by

Mr. Justice Gary.

The agreed statement of facts set forth in the “Case,” including the order of his honor, Judge Wallace, upon which his honor, Judge Gary, heard the case on Circuit, the order of Judge Gary and appellant’s exceptions will be incorporated in the report of the case.

1 The first question we will consider is: Did the appellant have the right to make the motion to set aside the summons issued by the plaintiff herein, the service thereof, the warrant of attachment, the levy and lien thereof, and the judgment therein entered on the 7th of November, in so far as the same affect the rights of the Perry Stove Company, as an attachment and judgment creditor, on account of the irregularities alleged by the appellant. Prior to the amendment of the Code in 1882, the appellants had no such right, as shown by the case of Copeland v. P. & A. Life Ins. Co., 17 S. C., 118, in which the court uses this language: “Under the former attachment acts of force before the adoption of the Code in March, 1870, it had been repeatedly decided that no one but the defendant in the attachment could question the regularity of the proceeding, or move to dissolve it on that ground, not even the garnishee, although served with process. In Foster v. Jones, 1 McCord, 116, it is said: ‘A garnishee has no right to question the regularity of the proceeding against an absent debtor.’ In Kincaid v. Neall, 3 McCord, 201, the court held ‘that a person, though a judgment creditor, cannot set aside the lien of the attachment on account of irregularities.’ In Camberford v. Hall, 3 McCord, 345, it was decided that no one but the debtor himself could take advantage of errors in the judgment rendered against him; that a garnishee could not object to errors or irregularities in the attachment proceedings. In McBride v. Floyd, 2 Bail., 214, Judge O’Neall said: ‘It has been often decided that neither a garnishee, a creditor of the debtor, nor any person other than the debtor himself, can question the regularity of the proceedings in attachment.’ See, also, Chambers v. McKee, 1 Hill, 229; Harper v. Scuddy, 1 McMull., 265. These cases would be conclusive under the old law as to irregularities. Has this been changed under the new? Our present attachment act is found in the Code, part 11, title VII., chap. IV. In section 265, there is a provision that defendants may move to discharge attachments, but this privilege does not extend beyond defendants. There is nothing said as to others. This section seems to be a legislative declaration of the law as it formerly stood. As Blakey is not a defendant, he cannot come in under any provisions of the act, and he is excluded under the decisions above referred to from questioning these attachments for irregularity.”

In the case of Metts v. P. & A. Life Ins. Co., 17 S. C., 120, it is held that a third party has no right to intervene and move to set aside an attachment upon the ground that the attached property belongs to him and not to the defendant. In 1882, section 263 of the Code was amended, so that the portion referred to in the case of Copeland v. P. & A. Life Ins. Co., supra, now reads as follows: “And in all cases the defendant, or any person who establishes a right to the property attached, may move to discharge the attachment, as in the case of other provisional remedies” (italics ours). This amendment was adopted for the purpose of enabling third parties, as in the case of Metts v. P. & A. Life Ins. Co., supra,, to move to set aside the attachment proceedings for irregularity where they claimed to be owners of the property, or to have a right to the possession thereof, but not for third parties generally to attack such proceedings,' as in the case at bar. We are, therefore, of the opinion that the appellant did not have the right to move to set aside said proceedings for the alleged irregularities. If the said attachment proceedings and the judgment entered therein by the plaintiff were absolutely null and void, and not merely voidable, then the appellant had the right to have them so declared.

2 The next question we will, therefore, consider is: Were said attachment proceedings and the judgment entered therein absolutely null and void? The case of Turner v. Malone, 24 S. C., 398, shows that the judgment is not void where the court had j urisdiction of the subject-matter in controversy and of the parties to the judgment. The voluntary appearance of the defendants in the case, where they made a motion before his honor, Judge Wallace, to vacate and set aside the attachment proceedings, gave the court jurisdiction of them.

3 It is, however, claimed by the appellants that the court did not have jurisdiction of the subjectof the action. We suppose this objection is made because it is stated in the case that the plaintiff’s cause of action was several notes given in North Carolina for merchandise sold and delivered to the defendants in North Carolina, and were payable in North Carolina. This question is settled by the case of Gibson v. Everett, 21 S. C., 22, holding that the court has jurisdiction in the cases similar to the one at bar. See, also, Campbell v. Home Ins. Co., 1 S. C., 158. But even if this was not so, the appellant is not in a position to make such objection. Its cause of action also arose in North Carolina, and in the absence of testimony showing that the contract was to be performed elsewhere, the place of the making of such contract is presumably the place of its performance. There is no such testimony in this case. Tillinghast v. Boston &c. Co., 39 S. C., 484. It is true, the appellant served the judgment debtors personally within this State with a copy of the summons, but the judgment debtors subjected themselves to the jurisdiction of the court in the case brought against them by the plaintiff, by voluntarily appearing in the case for the purpose hereinbefore mentioned. Black Judg., section 227. These views render it unnecessary to consider specifically the appellant’s exceptions.

It is the judgment of this court, that the order of the Circuit Court be affirmed.