35 S.C. 94 | S.C. | 1892
The opinion of the court was delivered by
This was an action brought by the plaintiffs, as executors of William B. Stanley, deceased, to foreclose a mortgage upon the real and personal property of James D. Stanley, upon which there remains due a balance of $8,000, with interest from date at ten per centum per annum, amounting to about $4,200. The making, execution, and delivery of the note and mortgage and its non-payment are not disputed. It
The defendant, Berry Mobley, as administrator of the estate of Jesse B. Mobley, answered, setting up a judgment against the said James D. Stanley, entered originally at Lancaster court house, South Carolina, on February 22, 1869, in a case entitled “Jesse B. Mobley v. James D. Stanley.” The claim was, that it was a valid judgment, with a lien reaching back to the time of its original entry (February 22,1869), and, therefore, the oldest lien on all the property of the said James D. Stanley, covered by the aforesaid junior mortgages. The only real contest in the case arises out of this judgment and its alleged lien. The exemplification of the record of said judgment from Lancaster was offered in evidence, and the Circuit Judge states the facts as follows :
“That in the year 1867 the said James D. Stanley, being a non-resident of the State, and owning property in Lancaster and Kershaw Counties, a suit was commenced against him in Lancaster County by writ of foreign attachment, and upon that writ, declaration in foreign attachment so reciting, was duly filed April 17, 1867, and judgment was entered up February 22, 1869, and execution issued the same day, which tvas first lodged in the office of the sheriff of Lancaster, then withdrawn and lodged in the office of the sheriff of Kershaw March 4, 1869, and the attached property sold thereunder and the proceeds applied to the execution by the sheriff of Kershaw. That no-further proceedings were taken thereunder until the year 1888. Meanwhile, in 1886, the defendant, James D. Stanley, became a resident of Richland County, South Carolina, acquired the property described in the proceedings, mortgaged the same in 1887, and in 1888 a transcript of the judgment was sent from Lancaster and docketed in Richland County, and on January 23, 1889, a
Upon this statement of facts his honor held that the said judgment had no lien upon any of the mortgaged estate, and pronounced a decree of foreclosure of the mortgages according to their respective dates. From this decree Berry Mobley, administrator, appeals to this court. His grounds are numerous, and all being in the “Brief,” we will not attempt to consider them seriatim. We think the points made, may all be covered and considered in the following propositions:
First. That the Circuit Judge erred in allowing a collateral attack to be made upon the judgment of Mobley.
In the last case cited Mr. Justice Miller expressed it thus: “If the defendant appears (foreign attachment), the cause becomes mainly a suit in personam, with the additional incident that the property attached remains liable, under the control of the court, to answer to any demand that may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its essential nature a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding is clearly evinced by two well established propositions, one of which is, that the judgment, though inform a personal judgment against the defendant, has no effect beyond the property attached in that.suit. No general execution can be issued for any balance unpaid after the attached property is exhausted,” &c.
As we have endeavored to show', the parties had the right to put in evidence the whole record of the Lancaster proceedings, which conclusively proved that the aforesaid action was foreign attachment. We do not know how' the character of the proceedings could be better proved than by the record, which had all the indicia of such an action.
Third. The appellant further contends that his honor should have held that the judgment, having been rendered by a court having general jurisdiction, and being in form a personal judg
The judgment of this court is, that the judgment of the Circuit Court be affirmed.