Opinion
14223
February 10, 1936.
Before DENNIS, J., Darlington, January, 1935. Affirmed.
Action by John Frank Lide against the Fidelity Deposit Company of Maryland and another, wherein defendants, after a mistrial, moved to set aside a judgment against Frances Isham, guardian, rendered upon petition of John Frank Lide, requiring her as former guardian of the petitioner to make her final accounting as such guardian, which was filed in the Court of Charles E. Sligh, Judge of Probate, before such Judge had made his final accounting or had been discharged as guardian of John Frank Lide, in a cause entitled Ex parte John Frank Lide. From an adverse judgment, John Frank Lide appeals.
Decree of Judge Dennis follows:
This is a motion on the part of the defendants to set aside the findings and judgment of the Judge of Probate against Frances Isham in her accounting as guardian of her son, the plaintiff, John Frank Lide.
That thereafter and before the said Charles E. Sligh had made his final accounting or had been discharged as guardian of John Frank Lide in a cause entitled Ex parte John Frank Lide, petitioner, in re. Frances Isham, filed his petition in the Court of Charles E. Sligh, Judge of Probate for Darlington County, requiring Frances Isham as a former guardian of the petitioner to make her final accounting as such guardian before him as Judge of Probate and in said petition and the hearing before Charles E. Sligh, as Judge of Probate, who was at the time guardian of the petitioner, it was sought to charge the said Frances Isham, and she was charged as guardian of the petitioner by the Judge of Probate, with many items amounting in the aggregate to several hundred dollars, which were or should have been paid after she had been discharged as guardian and which said items should have been collected by the Judge of Probate himself and accounted for by him as the guardian of the petitioner.
The fact that Judge Sligh was at that time the guardian of the petitioner, and the further fact that the said Frances Isham was being charged with items which should have been collected and accounted for by him as the then guardian of the petitioner disqualified him to act as Judge in the case for the reason that Section 215, Vol. 1, Code of Laws, 1932, provides that: "No Judge of Probate shall act as such in the settlement of any estate wherein he is interested as heir or legatee, executor or administrator, or as guardian or trustee of any person."
And under Article 5, § 6, of the Constitution it is provided that: "No Judge shall preside at the trial of any cause in the event of which he may be interested."
Thus it appears that when this action was commenced Charles E. Sligh was utterly disqualified and without jurisdiction to try the case, but it is contended by the attorneys for the petitioner that the Judge of Probate had jurisdiction of the subject-matter of an accounting by a guardian in his Court and that under the law as laid down in the cases of Ex parte Hilton, 64 S.C. 201, 41 S.E., 978, 92 Am. St. Rep., 800, Jeffers v. Jeffers, 89 S.C. 244, 71 S.E., 810, and Hyde v. Logan, 113 S.C. 64, 101 S.E., 41, jurisdiction of the person can be waived by the parties to the action and that the petitioner and Frances Isham as guardian specifically waived personal jurisdiction in the proceeding for the accounting by Frances Isham as guardian.
In the case of Hyde v. Logan, 113 S.C. 64, at page 76, 101 S.E., 41, 44, Judge Hydrick in writing the opinion of the Court uses this language: "No doubt Michel and Bold were disqualified by reason of their interest in the result, and it was error to allow them to act with the committee. It is contrary to law and the common sense of justice of all mankind that any man shall be a judge in his own case, or in a case in which he is interested, except in case of necessity, which did not exist in this case."
In 17 A. E. Enc. of Law, at page 732, it is said:
"The principle that a man may not be a judge in his own cause is of universal acceptance and has been established since the earliest period of the common law.
"Some decisions have gone so far as expressly to hold that it is beyond the scope of legislative authority to confer upon a party to a controversy or one interested therein the power to act as judge in such cause." Citing numerous authorities, among others, Cooley's Constitutional Limitations, 412.
And in Day v. Savage, Hob., 87, it was held that: "Even an act of Parliament made against the natural equity so as to make a judge in his own cause is void in itself."
These expressions in part from our own Court are so strong and based on such fundamental principles of right that I should be loath to hold that any judgment rendered by a Court which is interested in the judgment rendered in the remotest way should be binding or affect in any way the rights of parties who have not specifically waived their right to object.
It is clear that the proceeding for an accounting by Frances Isham was for the purpose of establishing a devastavit on her part to be used as prima facie evidence against the defendants, the Fidelity Deposit Company of Maryland and Julius S. McInnes, in a suit against them on the official bond of Julius S. McInnes, as Judge of Probate, as Frances Isham was utterly insolvent and was no longer a resident of this State. Then assuming that the petitioner and Frances Isham could waive personal jurisdiction for themselves in a proceeding for an accounting by Frances Isham, it is clear to my mind that such waiver of jurisdiction was of no effect in so far as the defendants, the Fidelity Deposit Company of Maryland and Julius S. McInnes, were concerned, and that Charles E. Sligh as Judge of Probate had no jurisdiction to try the case and make a finding that would in any way affect these defendants.
In 15 R.C.L., under the title Judgments, § 314: "Persons Entitled to Attack Judgment Collaterally — It is the well settled general rule that parties to an action or proceeding will not be permitted to attack the judgment rendered therein collaterally, except where such judgment was absolutely void for want of jurisdiction in the court rendering it, nor can one complain of an erroneous decision who has no legal or equitable interest affected thereby. On the other hand, it is generally held that where the rights of persons not parties or privies to a proceeding are adversely affected by the judgment rendered therein such persons are allowed to impeach it whenever it is attempted to be enforced against them or whenever in any suit its validity is drawn in question, since they have no remedy against the judgment, by appeal or otherwise, in the case itself."
And in Section 316 under the same subject the author uses this language: "It has been said by the Supreme Court of the United States in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed., 377, that the tendency of modern decisions everywhere is to the doctrine that the jurisdiction of the court or other tribunal to render a judgment affecting individual rights is always open to enquiry, when the judgment is relied on in any other proceeding. * * * However, it should be added that a judgment may be good in part and bad in part, good to the extent it is authorized by law, and bad for the residue."
As I understand it, the judgment on the accounting in this case may be good in favor of the petitioner as against Frances Isham alone, as she and the petitioner waived personal jurisdiction in the trial before Judge Charles E. Sligh, but under the section of the Code and the section of the Constitution hereinbefore referred to, the Judge of Probate was utterly without jurisdiction to try the case or render any judgment that would be binding or affect in any way the rights of any parties other than those waiving their rights under the disqualifying statute of the Constitution.
In the case of Woods v. Bryan, 41 S.C. 74, 19 S.E., 218, 44 Am. St. Rep., 688, which was an action by C.A. Woods v. M.Q. Bryan and Elizabeth S. Bryan to foreclose a mortgage executed by M.Q. Bryan to C.A. Woods dated January 18, 1885, it is recited in the case that on March 10, 1876, M.Q. Bryan confessed judgment before the Clerk of Court for several hundred dollars to Frances W. Kerchner under Section 384 of the Code. On November 16, 1880, prior to the execution of the Woods mortgage, the execution on this confessed judgment was renewed by order of Court, and in May, 1893, the debt and interest apparently due on this judgment was assigned to Mrs. E.S. Bryan, who on January 17, 1887, as assignee of the judgment confessed to Kerchner had it revived by order of the Court, and under the judgment thus revived she had the mortgaged tract of land levied on and sold by the sheriff and became the purchaser thereof and received sheriff's title for the same. Very soon thereafter the plaintiff, Woods, instituted proceedings to foreclose his mortgage against M.Q. Bryan, making his wife, E.S. Bryan, a party defendant. The cause came on to be heard before Judge Ernest Gary, who held the judgment confessed by M.Q. Bryan to Kerchner before the clerk was not in compliance with the law and also that neither the renewal of the execution nor the revival of the judgment, simply between the parties, could have the effect of giving validity to a judgment which was absolutely void, certainly not as to all persons who were neither parties nor privies; and as the plaintiff was neither a party nor privy he decreed a foreclosure of the mortgage.
Under an appeal to the Supreme Court this finding of Judge Gary was affirmed. Thus we have the revival of a confession of judgment erroneously entered by the Clerk of the Court recognized as valid between the parties to the revival proceedings and held absolutely void as to all other parties.
I am convinced that the judgment against Frances Isham is binding upon her and the petitioner, John Frank Lide, solely for the reason that they waived the disqualification of the Judge of Probate to act in the accounting had before him when he was disqualified by reason of interest in the result of the cause, but I am equally convinced that he was utterly without jurisdiction to make any ruling or finding which could in the remotest way affect the interest of any party or parties who had not joined in the waiver.
To my mind it would be a monstrosity to permit a Judge to sit in judgment in his own case, or in one in which he is interested in the outcome. Or, to use the language of Mr. Justice Hydrick, that distinguished Justice of our own Court, in the case of Hyde v. Logan, supra, that: "It is contrary to law and the common sense of justice of all mankind that any man shall be a judge in his own case, or in a case in which he is interested."
With all due respect for the high character of most Judges and especially for that of the present Judge of Probate of Darlington County, I must hold that his finding against Frances Isham and the judgment thereon against her can in no way affect the rights of Julius S. McInnes or his bondsmen, the Fidelity Deposit Company of Maryland, nor can such judgment be used against them as evidence in the case of John Frank Lide v. Fidelity Deposit Company of Maryland and Julius S. McInnes in the Court of Common Pleas, for the alleged failure of the said Julius S. McInnes to perform his duty as Judge of Probate in failing to require a sufficient bond of the said Frances Isham as guardian of the petitioner, John Frank Lide.
It is therefore ordered that the said judgment be set aside in so far as it affects in any way the rights of the defendants, the Fidelity Deposit Company of Maryland and Julius S. McInnes.
Messrs. Hyman McInnes and L.M. Lawson, for appellant, cite: As to proper parties: 34 C.J., 1043; 106 S.C. 45; 90 S.E., 327; 72 S.C. 491; 52 S.E., 592; 19 S.C. 166; 60 S.C. 35; 38 S.E., 779; 85 A.S.R., 847; 70 S.C. 1; 48 S.E., 619. Appeal from Probate Court: 160 S.C. 390; 158 S.E., 819; 33 S.C. 442; 12 S.E., 5; 156 S.C. 43; 152; S.E., 721; 146 S.C. 385; 144 S.E., 82; 34 S.C. 452; 13 S.E., 650. Collateral attack: 90 S.C. 552; 73 S.E., 1032; 34 S.C. 452; 27 A.S.R., 831; 24 S.C. 398; 25 S.C. 275; 17 S.C. 435; 19 S.C. 526. Waiver: 10 Ann. Cas., 967; 64 S.C. 201; 41 S.E., 978; 89 S.C. 244; 71 S.E., 810; 113 S.C. 64; 101 S.E., 41.
Mr. James R. Coggeshall, for respondents, cites: Waiver of jurisdiction: 64 S.C. 201; 113 S.C. 64; 89 S.C. 244; 15 R.C.L., 314; 41 S.C. 74; 34 C.J., 526; 53 S.C. 118; 35 S.C. 94; 10 Ann. Cas., 967; 43 S.C. 52; 51 S.C. 164.
February 10, 1936. The opinion of the Court was delivered by
John Frank Lide, the natural child of Frank M. Lide, who was in the military forces of the United States, became entitled to certain moneys from the Veterans' Administration, and Frances Isham, the mother of said child, upon her own petition was appointed guardian by Hon. Julius S. McInnes, the Probate Judge for Darligton County, on February 5, 1923. She executed an instrument purporting to be a bond in the sum of $100.00.
As such guardian she filed three affidavits, unvouched, by which she admitted receipt on behalf of John Frank Lide as follows: Affidavit dated July 12, 1924, the sum of $871.83; affidavit dated July 7, 1925, the sum of $240.00; and affidavit dated November 24, 1926, the sum of $300.00.
On October 1, 1926, Julius S. McInnes resigned as Judge of Probate for Darlington County, and Chas. E. Sligh was duly elected, and is now Judge of Probate for Darlington County.
On April 1, 1927, Chas. E. Sligh, Judge of Probate, passed an order discharging henceforth and forever, Frances Isham as guardian on the ground of absence from South Carolina for more than ten months. Upon a petition of J. C. Willcox, Regional Attorney for the United States Veterans' Bureau, the Court of Common Pleas appointed, by order dated April 30, 1927, Chas. E. Sligh, Judge of Probate, as guardian for John Frank Lide, who continued to act until the said minor reached his majority, but no formal discharge appears of record.
Upon petition of John Frank Lide, Chas. E. Sligh, under date of March 24, 1933, cited Frances Isham to account in regard to said guardianship, and she in response thereto appeared in person, and Chas. E. Sligh, Judge of Probate, rendered a decree against her upon her accounting in the sum of $2,774.32 and costs, which upon appeal to the Court of Common Pleas was affirmed after modifying same to the extent of an allowance of $700.00 for support and maintenance during certain years of minority. This decree was filed in the Probate Court for Darlington County, and transcribed to the office of the Clerk of Court for Darlington County as Judgment Roll No. 10535; a sheriff's return of nulla bona being indorsed upon an execution issued.
Thereupon John Frank Lide brought an action in the Court of Common Pleas for Darlington County upon the official bond of Julius S. McInnes, and the Fidelity Deposit Company of Maryland, alleging a breach of the conditions of said bond for failure to require proper guardianship bond of Frances Isham, and alleged the above-mentioned judgment as the amount of damage occasioned thereby.
After a mistrial in the above-mentioned action, the defendants, Julius S. McInnes and the Fidelity Deposit Company of Maryland, gave notice of a motion to set aside the judgment against Frances Isham, guardian, and require an accounting before a Probate Judge of an adjoining county. Upon this motion, the order appealed from was rendered by Hon. E.C. Dennis.
After a careful consideration of the record and the questions raised by the exceptions, this Court is satisfied with the conclusions reached by his Honor, Judge Dennis, in his order, which will be reported.
All exceptions are overruled. It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES CARTER, BONHAM and BAKER concur.