Opinion
13099
March 27, 1931. Modified April 22, 1931.
Before SEASE, J., Orangeburg, May, 1930. Reversed.
Action by the Bank of North, S.C. against James E. Leysath, and Leita S. Leysath, in which F.L. Witt, receiver of the Bank of North, S.C. was substituted as plaintiff. From an order granting the petition of Leita S. Leysath to vacate and set aside a judgment against her, plaintiff appeals.
The petition, the return, the order of the Circuit Judge, and the exceptions, directed to be reported, are as follows:
PETITION OF LEITA S. LEYSATHThe humble petition of Leita S. Leysath would respectfully show unto this honorable Court:
I. That during the times hereinafter mentioned, the plaintiff, Bank of North, was, and still is, a banking corporation duly organized under the laws of the State of South Carolina, having capacity to sue and be sued.
II. That several years ago the plaintiff, Bank of North, was closed and its affairs and property were placed in the hands of F.L. Witt, as Receiver thereof, under an order made by this Court.
III. That in the year 1915, the petitioner and the defendant, James E. Leysath, were duly married and became husband and wife.
IV. That several years thereafter the defendant, James E. Leysath, conducted himself towards his wife, the petitioner, in a most vicious and unbearable manner, finally abandoning her.
V. That the petitioner thereupon commenced an action against the defendant, James E. Leysath, to compel him to pay alimony for the support of herself and child.
VI. That on or about the 1st day of November, 1922, the defendant, James E. Leysath, came to the petitioner and demanded that she endorse a note for him, such note being signed by him and payable to the said Bank of North, for the sum of about fifteen hundred dollars, payable at a later date; that she at first refused to endorse such note, whereupon he drew a knife upon her and using vile oaths, threatened to cut her throat unless she endorsed the note as demanded by him; and that being thus put in bodily fear and terror for her personal safety and fearing that he would do bodily violence unto her, even to the extent of taking her life unless she endorsed such note, she complied with this demand; and that soon thereafter said James E. Leysath compelled her to endorse three other notes of similar tenor and amount under same and similar circumstances.
VII. That the defendant, James E. Leysath, was the president and a director of the said Bank of North and was active in the management of its affairs; and that upon information and belief, he had, in violation of law, become indebted unto the said bank and wished to use such notes in order to cover up his unlawful acts.
VIII. That the defendant, James E. Leysath, being an officer of the said Bank of North, it had full notice and knowledge of the manner in which the endorsements of the plaintiff were had and secured upon the said notes, and well knew that by reason of such fraud and coercion, as hereinbefore stated, such endorsements were utterly null and void.
IX. That after she had endorsed the notes, as aforesaid, and after the same had come into the possession of the plaintiff, the Bank of North, and while the alimony suit aforesaid, which was entitled Leita S. Leysath, plaintiff, against James E. Leysath, defendant, was pending and in course of trial, as she is informed and believes, a suit was commenced for the collection of the notes aforesaid, such suit being entitled Bank of North, plaintiff, against James E. Leysath and Leita S. Leysath, defendants, and a copy of the summons and complaint therein was given to her; but that she alleges, being unacquainted with such matters, thought that such papers so served upon her were papers connected with her suit for alimony against her husband, as hereinbefore stated and referred to, and that she put such papers aside, not thinking or knowing that she was being sued upon her endorsements upon said notes, or that she had to answer same.
X. That, as she is informed and believes, a judgment was thereafter taken by default against her for the amount of the said notes so endorsed by her.
XI. That her failure to answer and defend against a judgment in the case of Bank of North, plaintiff, against James E. Leysath and herself, as defendants, was due to her mistake and inadvertence as aforesaid, which she alleges was, and is, under the circumstances, excusable.
XII. That she had no knowledge or information concerning or notice of the entry of the judgment against her in the case of Bank of North, plaintiff, against James E. Leysath and Leita S. Leysath, defendants, until about the . . . . day of September, 1929.
XIII. That her endorsements upon the said notes were secured by force and fraud, of which the Bank of North knew, or ought to have known, by reason of the fact that the maker of such notes, the said James E. Leysath, who prepetrated such fraud upon her, was an officer of the said Bank of North; and that she has never received any part of the money from such notes.
XIV. That such judgment was taken and entered against her due to her mistake and excusable neglect, as well as the fraud and fraudulent conduct of the said J.E. Leysath and the Bank of North, of which he was an officer, and the fact that she failed to answer, within the time and as required by law, setting up the defense of force and coercion and fraud was due entirely to her inadvertence as aforesaid, she thinking that the summons and complaint served upon her was some paper in or connected with her suit for alimony against her husband; so that on account of such mistake, inadvertence and excusable neglect, she alleges that such judgment should be opened, and that she be allowed to file her answer setting up such defenses in order that justice may be done to her and to all parties interested in the matter.
XV. That, as hereinbefore stated, the plaintiff, Bank of North, is in the hands of F.L. Witt, as Receiver thereof, and that the said Receiver is now threatening to issue execution and to have the Sheriff of said county to levy upon and sell the property of your petitioner; so that your petitioner is remediless at law unless the Receiver be enjoined from issuing such execution and the Sheriff also enjoined from levying upon and selling her property thereunder; and that the present status of the parties should be preserved until this motion is heard and determined, because otherwise the plaintiff, Bank of North, would be enabled to enjoy the fruits of the judgment recovered as aforesaid, in fraud of the rights of your petitioner, of which fraud the plaintiff bank was, as hereinbefore stated, fully cognizant and aware of, all of which would be to the irreparable loss and damage of your petitioner.
Wherefore, she prays an order of this Court opening and vacating the judgment entered, and allowing her to file her answer and to make defense herein as is allowed by law; and she will ever pray, etc.
RETURN OF F.L. WITT, RECEIVERThe Bank of North by F.L. Witt, its Receiver, respectfully shows unto the Court:
1. That the Bank of North is a banking corporation organized and existing under and by virtue of the laws of the State of South Carolina, and has been in liquidation for several years with F.L. Witt as Receiver thereof; and that among the assets coming into his hands as such Receiver, there appears of record in the office of the Clerk of Court for Orangeburg County a judgment taken in the above-entitled action on which supplementary proceedings were commenced by an order dated September 16, 1929, from this Court requiring the defendants to appear before the Court on September 21, 1929, at eleven o'clock in the morning, or as soon thereafter as counsel may be heard, to submit themselves to examination on behalf of the judgment creditor and to answer concerning the property alleged in the petition hereto annexed applicable to the payment of the judgment herein.
2. That on September 21, 1929, the presiding Judge of the Court of Common Pleas for Orangeburg County by his order requiring James E. Leysath and Leita S. Leysath to appear before the Master of Orangeburg County on such dates and times as he should require them and to notify them or their counsel to do so and answer all questions propounded to them on behalf of the plaintiff in the above-entitled action, and by their counsel, and that the said Master should report the record and proceedings had before him to the Court with all convenient speed.
3. That the judgment in the above-entitled action was procured in this Court against the defendants, James E. Leysath and Leita S. Leysath on December 3, 1924, in the sum of Six Thousand Eight Hundred Thirty-three and 50/100 ($6,833.50) Dollars, and for costs in the sum of Three and 50/100 ($3.50) Dollars; which said judgment appears of record in the office of the Clerk of Court for Orangeburg County in Judgment Roll 211, Apartment 27, and was by the Clerk of the said Court entered of record in his office on December 3, 1924.
4. That on October 24, 1925, execution was issued by the Clerk of Court for Orangeburg County and placed in the hands of the Sheriff of said County, which said execution has been in his hands since, but that no collection has been made thereon and that on September 10, 1929, the Sheriff of Orangeburg County made his return on said execution in the form of a nulla bona and has filed the same in the office of the Clerk of Court for Orangeburg County and a reference is craved in this proceeding to the said judgment and the execution therein filed.
5. That your petitioner as Receiver of the Bank of North has no information or belief as to the allegations of the petition of the defendant, Leita S. Leysath, one of the defendants therein and respectfully submits to the Court that since the judgment sought to be opened up herein was procured more than a year before the commencement of these proceedings, to wit: On December 3, 1924, and since execution was issued on October 24, 1925, that under the laws of this State the relief sought by the petitioner in this action should be refused.
Wherefore, plaintiff, Bank of North, by F.L. Witt, its Receiver, prays that the petition be dismissed with costs.
ORDER APPEALED FROMThis case comes before me upon a motion made by the defendant, Leita S. Leysath, to vacate and set aside the judgment heretofore rendered against her in this action, and to open the default in failing to answer standing against her, so that she may file an answer and litigate the case upon the merits.
The motion is made upon her verified petition and upon the judgment roll in this case, as well as the judgment roll in the case of Leita S. Leysath against James E. Leysath for alimony. Leita S. Leysath is the wife of James E. Leysath.
While they were living together in 1922, and 1923, she endorsed four notes of Fifteen Hundred ($1,500.00) Dollars each, signed by her husband and payable to the Bank of North. These notes were delivered to the Bank of North and upon default in payment when due, a suit was commenced against Mrs. Leysath and her husband to enforce payment of such notes, and judgment by default was taken against both of them, which judgment she seeks to have opened in this proceeding.
After entry of judgment the Bank of North closed its doors and is now in the hands of a Receiver.
In her petition, among other things, she alleges that for some time before endorsing the said notes, her husband "conducted himself towards his wife, the petitioner, in a most vicious and unbearable manner, finally abandoning her," that she thereupon commenced an action against him to compel the payment of alimony for the support of herself and child; that about the first day of November, 1922, and several times thereafter her husband came to her, and "demanded that she endorse a note for him, such note being signed by him and payable to the said Bank of North for the sum of about Fifteen Hundred ($1,500.00) Dollars, payable at a later date; that she at first refused to endorse such note, whereupon he drew a knife upon her and using vile oaths threatened to cut her throat, unless she endorsed the note as demanded by him; and that being thus put in bodily fear and terror for her personal safety and fearing that he would do bodily violence unto her, even to the extent of taking her life unless she endorsed such note, she complied with this demand; and that soon thereafter said James E. Leysath compelled her to endorse three other notes of similar tenor and amount under same and similar circumstances;" further, that her husband "was the president and a director of the said Bank of North, and was active in the management of its affairs; and that upon information and belief, he had in violation of law become indebted unto the said bank and wished to use such notes in order to cover up his unlawful acts;" further, that her husband, being an officer of the said Bank of North, "it had full notice and knowledge of the manner in which the endorsements of the plaintiff were had and secured upon the said notes, and well knew that by reason of such fraud and coercion, as hereinbefore stated, such endorsements were utterly null and void;" still further, that "after she had endorsed the notes as aforesaid and after the same had come into the possession of the plaintiff, the Bank of North, and while the alimony suit aforesaid, * * * was pending and in course of trial, as she is informed and believes a suit was commenced for the collection of the notes aforesaid, * * * and a copy of the summons and complaint therein was given to her; but that she alleges, being unacquainted with such matters, thought that such papers so served upon her were papers connected with her suit for alimony against her husband, as hereinbefore stated and referred to, and that she put such papers aside, not thinking or knowing that she was being sued upon her endorsements upon said notes, or that she had to answer same;" and still further, alleges in her petition that her failure to answer and defend against a judgment in this case was due to her mistake and inadvertence, which ought to be under the circumstances excused.
She further states in her petition that she had no knowledge or information or notice of the entry of the judgment against her until during the month of September, 1929.
She further alleges in her petition and by her amended petition that her endorsement upon the said notes as well as the entry of judgment against her was fraudulent, and that such judgment should be set aside because of fraud and the status of the parties restored as of date when service was made upon her, so that she may now answer and defend against such fraud.
She also states that the Bank of North is to be charged with notice and knowledge of the perpetration of such frauds upon her, because the bank itself was then managed by her husband, the said James E. Leysath, who was President of the institution, and who perpetrated the frauds alleged upon her and against her rights.
There are four notes, each for Fifteen Hundred ($1,500.00) Dollars, and are dated as follows: November 1st, 1922; February 1st, 1923; April 1st, 1923, and May 1st, 1923, and all being payable on November 1st, 1923.
The action of the petitioner against her husband was commenced on September 10th, 1923, and was decided by the Supreme Court on December 31st, 1924. See Leysath v. Leysath, 130 S.C. 512, 125 S.E., 737.
The suit upon the notes was commenced in September, 1924, and proof of service upon the petitioner is endorsed upon the summons and complaint as of date September. . . ., 1924.
Judgment by default was entered in this suit in November, 1924.
So it will be seen that the suit for alimony against her husband had been commenced before this Court, and was pending at the time this suit was brought, and was not decided until after judgment was entered by default in this case.
The Receiver of the defunct bank files a return setting up the fact that he has been duly appointed Receiver, denying the right of petitioner to have the judgment opened, and especially setting up that her motion to vacate the judgment was made more than one year after she had notice of the entry of such judgment.
In support of his contention the Receiver produces a letter written by J.A. Berry, Esq., who represented Mrs. Leysath in the alimony suit, in which Mr. Berry asks about the amount due upon the judgment in this case; and a copy letter from counsel for the bank giving Mr. Berry this information.
The receiver also calls the attention of the Court to a reference to the judgment in this case made by Hon. Ed. C. Mann, Master, in his report in the alimony case.
These are the facts submitted to the Court by the petitioner and by the Receiver for the plaintiff bank.
It will be seen that the facts in the case are practically undisputed, as the statements made by the petitioner in her verified petition are not controverted, except as to the fact that she had notice of the judgment for more than one year prior to making such motion to vacate the judgment; however, she states positively in her petition that she had no notice or knowledge of the entry of such judgment until during September, 1929, or just a short time prior to serving her petition and notice of this motion.
Execution was issued soon after entry of the judgment and was returned nulla bona by the Sheriff in September, 1929, and the petitioner was examined in supplementary proceedings soon thereafter; whereupon she filed this motion to vacate or open the judgment.
Mr. Berry represented Mrs. Leysath in the alimony suit, but not in this case; and hence, in the absence of any showing to the contrary notice or knowledge of the attorney of the entry of the judgment would not be imputed to Mrs. Leysath in this case, because no counsel appeared for her in this case until after entry of the default judgment.
The fact that Mr. Mann, the Master of the County, referred to the entry of this judgment in his report in the alimony case would not be sufficient to charge Mrs. Leysath with notice of the entry of this judgment, unless there was some affirmative showing that Mrs. Leysath had read such report, or had been advised of its contents, there being no connection between the alimony suit and this case.
The petitioner contends, firstly, that the Court exercising discretion should under the provisions of Section 437 of the Code, vacate the judgment and open the default standing against her because of her mistake, inadvertence or excusable neglect, and, secondly, that the said judgment should be vacated and set aside, because the bank and its president having perpetrated a fraud upon the Court in having such suit commenced and judgment entered, the entire judgment should be avoided for fraud.
The Receiver contends that the motion should be refused because Mrs. Leysath could read, that it was her duty to read the summons and complaint when served upon her and answer; that she was negligent and ought to be held to the consequences of her negligence in respect to the matter; and, further, that the motion should be denied because Mrs. Leysath had notice of entry of the judgment for more than one year before filing such motion.
Counsel for the Receiver urge that before relief may be given under Section 437 of the Code, it is necessary that the petitioner show: 1. That her motion was made within one year after notice of the entry of the judgment. 2. That failure to answer was due to her mistake, inadvertence or excusable neglect. 3. That she has a defense which is probably meritorious.
The defendant-petitioner filed this motion to vacate on the 11th day of November, 1929. Did she have notice of the entry of such default judgment against her for more than one year prior to the date of her motion? Or did she make this motion within one year after notice of entry of such judgment?
The statute requires that such motion be made within one year after notice of the entry of the judgment.
In her verified petition she states positively that she had no notice of this judgment until during September, 1929. The dates in the record would seem to support this statement. An execution was issued directly after entry of the judgment; but lay dormant until September, 1929, when a nulla bona return was endorsed thereon by the Sheriff. She was examined in supplementary proceedings in October, 1929. She filed this motion in November, 1929. It is not unreasonable to assume that return of the execution marked nulla bona in September, 1929, followed by supplementary proceedings in October, 1929, started "something," resulting in filing this motion, Likewise, the closing of the bank likely caused considerable delay in any attempt to enforce the judgment, thus delaying notice to the defendant that would necessarily follow an attempt to enforce the judgment.
The plaintiff cannot impute notice to her by reason of the letter written by her attorney in another case. Often lawyers in the proper conduct of cases do various things in the interest of clients, without expressly informing them. Nor can the reference by Mr. Mann, Master, in his report in the alimony cause (a different case) to the judgment in question, impute knowledge to Mrs. Leysath in the absence of an affirmative showing that she read the report or was advised of its contents.
Under the evidence, the Court is constrained to find that Mrs. Leysath did not have notice of the entry of the judgment in question for more than one year before filing this motion to vacate.
The petitioner admits that the summons and complaint were served upon her in September, 1924; but she contends that she thought that these were papers connected with her alimony suit which was then pending in the Court; and that in her distracted state of mind she put the papers aside without reading them.
She thus admits her negligence and seeks to excuse her negligence upon the grounds that by mistake she thought the papers were connected with her alimony suit, which was then pending and on appeal to the Supreme Court; and prays the Court to give her relief both for this reason and because her neglect ought to be excused under the circumstances, having reference no doubt to her naturally distraught state of mind.
Such a motion is addressed to the sound discretion of the Court, who ought to, and will, give relief if there was a bona fide mistake caused by some fairly sound reason, or if under all of the surrounding circumstances the negligence ought to be excused so that substantial justice may be promoted and done between the parties.
It is true great respect must be shown to a judgment duly and solemnly entered in the archives of the Court, and it must not be lightly disturbed; but, under the provisions of our Code, a judgment is not unassailable.
The Court is impressed that in the interest and promotion of substantial justice, the defendant-petitioner ought to now be given "her day in Court." The peculiar circumstances surrounding her at the time the summons and complaint was served upon her are sufficient to move the Court to give her relief.
If permitted to answer, has she any meritorious defense? She alleges that the notes sued upon are, so far as her endorsements are concerned, fraudulent; if this be true, it is well settled that fraud destroys everything it touches, and would be a defense.
It is suggested that even if permitted to answer now, her right to relief from the alleged fraud is barred, because the fraudulent actions complained of occurred more than six years ago, and hence relief would be now barred under the statutes of limitation respecting fraud.
The plea of the statute of limitations constitutes an affirmative defense, and must be pleaded. In this case the plaintiff may not see fit to plead the statute in bar.
Besides, the commencement of this action in 1924 arrested the currency of the statute and crystallized the rights of the parties as of that date, and if permitted to answer now the answer would be filed, of course, nunc pro tunc, as of the date of commencing the action in 1924, which would be admittedly beyond the bar of the statute.
"The running of the Statute of Limitations is, in general, arrested by the bringing of an action." 17 R.C.L., 809, 37 C.J., 1051, 1052.
The Court, therefore, is of opinion that the motion should be granted; and it is accordingly.
Ordered and adjudged, that the motion be, and hereby is, granted; and that the judgment heretofore rendered and entered in this case against the defendant-petitioner, Leita S. Leysath, be, and hereby is, vacated and set aside; and that her default in failing to file an answer to the complaint in this action within the time required by the Code after service upon her is excused and opened, and that she be permitted to file an answer within twenty days after the filing of this order.
EXCEPTIONS1. Because his Honor, the Circuit Judge, erred in holding that from the evidence the defendant, Mrs. Leysath, did not have notice of the entry of the judgment.
2. Because his Honor, the Circuit Judge, erred in not holding that entry of judgment in the office of the Clerk of Court carried notice to the defendant and fulfilled the requirements of the statute as to notice.
3. Because his Honor, the Circuit Judge, erred in not holding that notice of the judgment may be imputed to the defendant through her attorney who set up such judgment in her behalf and for her benefit in another proceeding.
4. Because his Honor, the Circuit Judge, erred in holding that the judgment should be opened up in the discretion of the Court after expiration of more than one year from date of entry, when he should have held that in the absence of fraud and collusion in obtaining the judgment, no relief can be granted under the statute for excusable neglect and it is not in the discretion of the Court.
5. Because his Honor, the Circuit Judge, abused his discretion in holding that the circumstances of the defendant at the time of the service of the summons and complaint, in the case in which the judgment was obtained, was a sufficient excuse to open up the judgment on the ground of excusable neglect.
6. Because his Honor, the Circuit Judge, erred in holding the Statute of Limitations is arrested, and the plaintiff may not at this time plead the same as a bar to defendant's defense, when he should have held that the Statute of Limitations began to run against the defendant on the date she endorsed the notes sued on; this being the date on which the fraud was perpetrated.
Messrs. Lide Felder, for appellant, cite: Relief can be given against judgment only within one year after notice thereof: Code Proc. 1922, Sec. 437; 17 S.C. 445. Notice of judgment: Code Proc. 1922, Sec. 610; 3 Civ. Code 1922, Sec. 320; 84 S.C. 141; 59 S.C. 481; 46 C.J., 543, 548. Litigants bound by acts of attorneys: 47 S.C. 398. Both parties to cause have rights: 24 S.C. 141. Judge erred in granting order under circumstances: 93 S.C. 367; 53 S C., 222; 36 S.C. 578; 75 S.C. 14; 79 S.C. 47; 108 S.C. 49. Statute begins to run upon knowledge of fraud: Code Proc. 1922. Sec. 331; 16 S.C. 550; 18 S.C. 526; 19 S.C. 477; 44 S.C. 382.
Messrs. Wm. C. Wolfe and Adam H. Moss, for respondent, cite: Constructive notice of judgment not sufficient: 20 R.C.L., 342. Judgment founded upon fraud ought to be set aside: 17 S.C. 442. Running of Statute of Limitations arrested by bringing action: 17 R.C.L., 809; 37 C.J., 1051. Defense of fraud does not change character of action: 128 S.C. 107; 121 S.E., 671.
March 27, 1931; Modified April 22, 1931.
The opinion of the Court was delivered by
This case comes before this Court on appeal by the plaintiff, F.L. Witt, receiver of the Bank of North, S.C. from an order of his Honor, Judge T.S. Sease, granting the petition of the defendant Leita S. Leysath to vacate and set aside the judgment heretofore rendered and entered in this case against the petitioner by default, and permitting her to file an answer within twenty days from the date of said order. The facts involved, briefly stated, are as follows:
While the defendants, James E. Leysath and Leita S. Leysath, were living together as husband and wife, in 1922 and 1923, she, Leita S. Leysath, indorsed four notes of $1,500.00 each, signed by her husband, the said James E. Leysath, payable to Bank of North. The notes were delivered to the Bank of North, and upon default of payment when the same became due, suit was commenced, in the Court of Common Pleas for Orangeburg County, against the defendants, James E. Leysath and Leita S. Leysath, and judgment by default was obtained against both of them, December 3, 1924. After entry of judgment the said bank closed its doors, and in due time a receiver was appointed for the closed bank, and he, as such receiver, was later substituted as plaintiff in the cause. October 24, 1925, execution was issued by the Clerk of Court of said County of Orangeburg and placed in the hands of the Sheriff of said county, but no return was made until September 10, 1929, on which date the Sheriff made return on the execution in the form of a nulla bona. After the nulla bona return was filed, the Bank of North, through its said receiver, began supplementary proceedings which resulted in an order requiring the defendants to submit to an examination before the Master for said county. Following this examination, the defendant Leita S. Leysath presented to the Court the petition herein involved, whereby she petitioned the Court for an order "opening and vacating the judgment entered and allowing her to file her answer and to make defense herein as is allowed by law." The record before the Court further discloses that September 10, 1923, the petitioner herein, Mrs. Leita S. Leysath, brought an action against her husband, the said James E. Leysath, for alimony, and that case was heard at the October, 1923, term of Court of Common Pleas for said County of Orangeburg, and from the judgment of the lower Court in that cause against the said James E. Leysath, he appealed to this Court, the case being reported in 130 S.C. 511, 125 S.E., 737. Later, December, 1925, the said Leita S. Leysath brought an action in the County Court for Orangeburg County wherein she tried to compel her husband, the said James E. Leysath, from whom she was separated, to pay her alimony which had been awarded her by the Court. In this proceeding, brought in her behalf, the judgment in the case of the Bank of North against the said James E. Leysath and Leita S. Leysath was by her attorneys introduced in evidence, and the Master in his report in the case in the County Court called attention to this judgment in the Bank case. As set forth in the petition of the said Leita S. Leysath (which petition will be reported with the case), it is her contention that she has a valid and complete defense against the notes in question, set out in the suit instituted by the bank and on which judgment was obtained, and that the bank had full notice thereof; that she did not answer the complaint in that cause, which complaint was duly served upon her along with the summons attached, because of mistake and inadvertence, which she alleges was excusable, a full statement of her alleged mistake and inadvertence being set forth in her petition, which will be reported.
The exceptions, which will be reported with the case, raise several questions, but under the view we take of the case it is only necessary to consider one question, that with reference to notice of the judgment entered against the petitioner in the Bank case.
Under the facts alleged in petitioner's petition, if the relief asked for is to be granted it must be under Section 437 of the Code of Civil Procedure, 1922, which section reads as follows:
"(437) Court May Give Relief in Case of Mistake. — The Court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or, by an order, enlarge such time; and may also, in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect, and may supply an omission in any proceeding; and whenever any proceeding taken by a party fails to conform in any respect to the provisions of this Code of Procedure, the Court may, in like manner, and upon like terms, permit an amendment of such proceeding, so as to make it conformable thereto." (Italics added.)
Under the provisions of this section of the Code the relief can be granted only when the same is asked for within one year after notice of the judgment. It is the contention of the petitioner, who is the respondent before this Court, that she presented her petition for relief within one year after receiving notice of the judgment in question. She contends that she had to have actual notice and that the records of the Court, in the office of the Clerk of Court for Orangeburg County, afforded no notice to her, as contemplated by the section of the Code above quoted. We are unable to agree with this position, but think the petitioner, like all other persons, bound by the constructive notice afforded by the recordation of the entry of judgment, or enrolling the same, and having not presented her petition for relief sought within the required time, that the Court is powerless to grant the same. The record discloses that the judgment in question was obtained against the defendants in the Bank case, including the petitioner, in the Court of Common Pleas for Orangeburg County, December 3, 1924, and the same appears of record in the office of the Clerk of Court of said county, in Judgment Roll 211, Apartment 27, and was so entered at the time obtained. The petition to the Court was not presented until November 11, 1929. We think the petition should have been refused.
In this connection we call attention to the fact that while the petitioner, in her allegations contained in her petition, sets out a statement of facts which, if proven, would tend to establish fraud and coercion in procuring her indorsement to the notes sued on and on which judgment was obtained, she alleges and sets out no statement of facts which, if proven, would tend to establish fraud and coercion in obtaining judgment against her. She says that her husband executed the notes in question to the bank because of some unlawful acts on his part in his dealing with the bank and that he forced her to endorse the notes under threats of taking her life. When the suit was begun to procure judgment against petitioner, on account of her indorsement of these notes, it was commenced, not against her alone, but against her husband also, and judgment was obtained against both. There is nothing in the record which tends to show that the husband colluded with the bank in getting the judgment against petitioner. While the record shows that her husband was president of the bank at the time of the execution of the notes, the record does not show that he was acting as president at the time of the suit in question. He was certainly not in charge of the bank's affairs when the suit was begun, else the suit would not have been against him. So far as the record discloses, the suit was pressed against petitioner's husband just as it was pressed against her. It is also interesting to note that while, according to petitioner's allegations, her indorsement to the notes was procured by force and fraud, in the years 1922 and 1923, she took no steps to be relieved of her obligations thereon until November 11, 1929, notwithstanding the fact that soon after indorsing the notes she commenced an action against her husband for alimony. If she had no fear of prosecuting a suit against her husband for alimony, it does seem that she might have had the temerity to have taken steps to be relieved of her obligation on account of her indorsement. The summons and complaint in the case in question was served on petitioner September 24, 1924, and no question is suggested that the service was not lawful and regular in every sense, and the record contains due proof to that effect. The petitioner did not answer, and says in her petition that she did not answer the summons and complaint because she thought the papers were connected with the alimony suit she had instituted against her husband. Why she did not take time to read papers served upon her which she thought were connected with the alimony suit, a matter in which she must have been deeply interested, is hard to understand. Thereafter, the attorney representing the plaintiff in the said suit, after the time had expired for answering, filed the regular affidavit showing the defendant, petitioner herein, had defaulted. Following this, judgment was taken in the manner prescribed by law, and due entry and enrollment of the same made in the office of the Clerk of Court for Orangeburg County, which record served as notice to the petitioner and to the world of said outstanding judgment. In her petition petitioner has asked the Court to open up the judgment. She alleges that she was greatly worried at the time the papers were served upon her, and states that she is entitled to have the judgment opened on account of the mistake she made, her inadvertence and excusable neglect. According to our view of the law, the petitioner is not entitled to the relief sought, and think that his Honor, the trial Judge, erred in granting the petition.
In connection with the view herein expressed, attention is called to Section 610 of the Code of Civil Procedure 1922, and Section 5320, Vol. 3, Code 1922, and amendments thereto; also, to the following cases: Mortgage Company v. Strait, 84 S.C. 141, 65 S.E., 1038; Brown v. Easterling, 59 S.C. 472, 38 S.E., 118.
It is the judgment of this Court that the order appealed from be and the same is hereby reversed and the petition of the said Leita S. Leysath refused and dismissed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN and STABLER and MR. ACTING ASSOCIATE JUSTICE COSGROVE concur.