December 8, 1904. The opinion of the Court was delivered by
The pleadings and the several notices and orders which are involved in this appeal are set out in full in the report of the case. The exceptions will not be considered in detail. The two main questions involved are: First. Did the cause of action stated in the complaint survive or continue against the heirs of the defendant upon his death during the pendency of the action? Second. If it did survive, was it necessary, upon the filing of a supplemental complaint, more than one year after the death of the defendant, to issue a new summons directed to the heirs, in order to continue the action against them?
It is clear that at the time of the death of the ancestor in 1891, no judgment for damages could be recovered against
the heir on account of the trespass of the ancestor. Huff v.Watkins, 20 S.C. 477; Jenkins v. Bennett, 40 S.C. 397,18 S.E., 929. The act of 1892 (21 Stat., 18), establishing a different rule has no retroactive effect, and hence does not affect this case. If this complaint were for the recovery of real estate, it would then be founded on a cause of action which would survive, and the action would be continued against the heirs of defendant, because they would, by operation of law, have the ancestor's claim to the land, the title to which would be adjudicated by the result of the action. But the complaint is not for the recovery of real estate, but for a distinct trespass alleged to have been committed on the land in the possession of the plaintiff. It is, therefore, an action of trespass quare clausum fregit. It is quite true, when the plaintiff alleged that he was not only in possession, but was the owner of the land at the time of the trespass, and the defendant denied this allegation, the question of title was raised, and if the defendant had lived to have a verdict and judgment for damages entered against him, the question of title would have been effectually determined.Parker v. Leggett, 12 Rich., 200; Parker v. Leggett, 13 Rich., 172; Heyward v. Farmers' Company, 42 S.C. 138,19 S.E., 963. But neither a verdict nor a judgment for the recovery of the land could have been entered. The adjudication of the title would not have been direct, but it would have followed by necessary implication from the fact that the plaintiff recovered a judgment for damages for a trespass, the judgment for damages depending on his claim of title which the defendant denied.
"A point which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a domestic court of competent jurisdiction, cannot be again drawn in question in any future action between the same parties or their privies, whether the cause of action in the two suits be identical or different." 2 Black on Judg., sec. 504. No judgment could be recovered in this action
except for damages, and damages cannot be recovered against the heirs for the trespass of the ancestor, merely because the result of the action as it originally stood would have incidentally involved the title. On this ground the judgment of the Circuit Court must be reversed. This is decisive of the case, but the other question concerns an important matter of practice, and is, therefore, considered.
The supplemental complaint was filed more than a year after the death of the defendant, under the following provision of section 142 of the Code of Procedure: "In case of death, marriage or other disability of a party, the Court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. * * *"
In Arthur v. Allen, 22 S.C. 432, 444, the Court says: "But it is said that there was no necessity or authority for issuing a summons with such supplemental complaint. The object was to make the representatives of the deceased persons parties to the action, and as the only mode of effecting that object is by the service of a summons, unless in the case where the application is made by motion within a year from the death of such parties, it would seem to follow necessarily that a summons must issue, or such representatives never would become parties. It does not appear, therefore, that the objections urged to the validity of the summons of June, 1882, and the supplemental complaint issued thereon, can be sustained. More than a year had elapsed from the death of the several parties, and hence the action could not be continued by motion, and only by supplemental complaint, for the filing of which no leave of the Court was necessary as we have seen." It was insisted in argument that this conclusively establishes the proposition that a summons must always be issued when a supplemental complaint is filed under section 142. It will be observed in the case of Arthur
v. Allen, supra, upon filing the supplemental complaint, the
summons was issued and served, and the defendants moved to set aside the services on the ground that section 142 does not contemplate the service of a summons when a supplemental complaint has been filed, and that such service was not effectual to require those against whom the action was continued to answer the complaint. The issuing and service of a summons was held to be sufficient and proper. The point was not involved in that case whether an order to show cause would not have been equivalent to a summons, or sufficient notice to the heirs to require them to answer. Whether we regard the continuance of the action against the heirs as bringing in entirely new and independent parties, or merely a substitution of the heirs in the stead of the ancestor whose rights have descended to them, it is manifest in either case the summons would be proper and sufficient. In the one case it would be necessary to commence the action against the heir, and in the other it would be adequate notice to him to answer the supplemental complaint. We do not think, however, the proceeding is to be regarded as a new action or as bringing in independent parties, but as the continuance of the old action against the heir in right of his ancestor. It is to be observed that the statute does not require the service of a formal summons, and it would be carrying technicality to its utmost limit to hold that an order of the Court giving notice of the supplemental complaint and requiring the heir to answer would not suffice to bind the heir and give the Court jurisdiction in the absence of an express provision requiring a formal summons.
Taking this view, it was said in Lyles v. Haskell, 35 S.C. 391,402, 14 S.E., 829, after quoting the provision of the Code of Procedure here under consideration: "This was done within a year by Judge Hudson's order of June 7, 1883, and a copy of the same was served on each of the heirs, with a notice that if they did not within twenty days appear and answer the complaint, the plaintiff might apply to this Court for an order appointing a guardian ad litem for the infants, c. It is contended, however, that a summons was indispensable. We find no express requirement that in a case continued by order, there must be also a summons; and as the order served contained substantially all the elements of a summons, we cannot say that the absence of a formal summons was a jurisdictional defect." It is true, that there the cause was continued by order, the defendant not having been dead more than one year, while in this case a supplemental complaint was necessary, more than a year having elapsed after death. But in neither case is a formal statutory summons expressly required, and, therefore, the views expressed by the Court apply in one case as well as the other. The order of Judge Hudson only required the parties to show cause why the action should not be continued against them, "on the supplemental complaint heretofore served upon them." It adjudged nothing. Upon the coming in of the return, Judge Townsend ordered the case to be continued against the heirs, with leave to answer within twenty days. All this must be regarded sufficient in the absence of an express requirement for the service of a summons.
On the first ground above stated, the judgment of the Circuit Court is reversed.