When this cause was first heard in this Court, Mr. Justice Stabler and I concurred in the opinion of Mr. Justice Cothran reversing the judgment below. My views are still in accord with that opinion, and I adopt it as my dissenting opinion from the judgment now proposed to be entered.
This is an action commenced July 16, 1924, for the purpose of having it adjudicated that a judgment of the Court of Common Pleas for Florence County, entered upon a verdict rendered in May, 1914, declaring that the will of Robert J. Muldrow, Sr., which had been proved in common from in the Court of Probate, was "no will," is null and void, for want of jurisdiction in the Court of Common Pleas to so determine, and for fraud in the proceedings eventuating in said verdict and judgment.
The plaintiff, Robert J. Muldrow, Jr., a grandson of the alleged testator, claims to be a devisee of the land in question, under said will, and prays that the proceeding referred to be set aside as a cloud upon his title.
The defendants are the heirs at law of Mrs. Annie G. Muldrow, the widow of the testator, to whom the property *Page 526 in question was allotted in the division of the property of Robert J. Muldrow, Sr., as an intestate estate, S.T. Burch, the purchaser of the property in question at a sale for partition of the property of Annie G. Muldrow, deceased, and M.M. Brown and L.A. McCall, against whom the defendant Burch makes certain claims.
It thus appears that the regularity of the immediate proceeding under which Burch acquired his title, the partition proceeding, in which the estate of Annie G. Muldrow, deceased, was divided, is not in question; the attack is upon the title of Annie G. Muldrow, from whom Burch claims, by reason of the alleged nullity of the judgment declaring, upon proof in solemn from of the will of Robert J. Muldrow, Sr., that it was "no will."
Robert J. Muldrow, Sr., died on April 2, 1911, leaving a will dated March 30, 1911, in which he devised to his grandson, the plaintiff, the remainder in fee after a life estate to another, in the real estate described in the complaint. On April 17, 1911, J.A. Muldrow, his son, and Marion Lee Jeffords, his daughter, who were named executor and executrix of the will, presented the will for probate to the Judge of Probate of Florence County, and it was duly admitted to probate in common form on that day. The personal representatives qualified and proceeded with the execution of the will and the administration of the estate. On November 29, 1911, certain of the heirs at law of Robert J. Muldrow, Sr., interested in invalidating the will, gave notice to the Judge of Probate requiring it to be proved in due form of law. Thereupon the Judge of Probate issued a summons addressed to all of the heirs at law of Robert J. Muldrow, Sr., "such persons as would have been entitled to distribution of the estate, if the deceased had died intestate," requiring them to answer the petition. This summons did not include the plaintiff, Robert J. Muldrow, Jr., evidently for the reason that he was interested only as a devisee, and *Page 527 not as an heir at law, his father, J. Archie Muldrow, son of the deceased, being alive.
Upon the day fixed for hearing proof before the Judge of Probate upon the issue of admitting the will to probate in due form of law (the date does not appear in the record for appeal), the counsel for the contestants announced that for the purposes of an order which had been agreed upon between the attorneys for the respective sides, the contestantswould waive proof in due form in the Probate Court. "Thereupon it was agreed between counsel for the said contestants and counsel for the said proponents of the will that the issue of `will or no will' be submitted to the Court of Common Pleas for Florence County." The Judge of Probate then signed an order, consented to by Walter H. Wells, Esq., attorney for the contestants, and W.F. Clayton, Esq., attorney for the proponents:
"That the issue of `will or no will' be and the same is hereby certified to the Court of Common Pleas for Florence County for its decision, and that the formalities required by Rule 28 of the Circuit Court be considered waived."
The order, as it appears in the record for appeal, is without date, but it manifestly was signed at some time prior to the Spring Term, 1913, of the Court of Common Pleas for Florence County.
It is not so stated in the record, but we assume that the Probate Judge made some sort of a certificate to the Court of Common Pleas, the platter upon which the issue was presented to that Court. At any rate, the matter came up for trial before his Honor, Judge Rice, and a jury, at the Spring Term 1913, of said Court. At this trial a most remarkable situation arose. As his Honor, Judge Rice, states in his order of July 7, 1913:
"At the trial the proponents of the will (the personal representatives), were represented by Mr. W.F. Clayton and Mr. Henry Buck, and after a good deal of evidence was in,all tending to sustain the will, the Court was asked to allow *Page 528 the parties and their attorneys a few minutes in which to consult, as they wished to settle the matter without further contest. On returning to the courtroom, Messrs. Buck and Clayton stated that their clients desired to discontinue theiropposition to setting aside the will, and asked that the Court allow them to withdraw from the case, which request was granted in a formal order. Thereupon Mr. Philip H. Arrowsmith, a young attorney, was requested by the proponents of the will to represent them formally, which he did,but, in accordance with the wishes of the proponents of thewill, made no effort to establish the will."
Testimony was offered by the contestants against the validity of the will. The case was submitted to the jury, apparently without argument, and a verdict of "no will" was rendered. Thereafter, as his Honor states, at his suggestion, the executor made a motion for a new trial, and after considering it, his Honor filed an order dated July 7, 1913, granting a new trial, upon the ground that the circumstances above detailed convinced him that there had not been a fair trial of the issue. He explained the remarkable conduct of the executor in this way: "It is due the executor, who as stated, is the son of testator, to state that I was impressed with his evident willingness and anxiety to do his full duty as executor, and appeared to cease his efforts to sustain the will only after pressure was brought to bear on him by his mother, the wife of the testator (who, we interpolate, would receive much more as an heir at law of the estate, intestate, than as a devisee under the will), and other members of his father's immediate family" — regardless of the interests of his own son, the plaintiff, and other remaindermen under the will. His Honor, Judge Rice, further took the position that the proponents of the will did not represent the interests of the remaindermen, and directed by his order that they be made parties to the proceeding.
Accordingly, the original summons and petition were amended by adding the remaindermen, including the plaintiff, *Page 529 as respondents. The amended summons and petition were entitled as the originals were, "In the Court of Probate"; the summons being signed "H.A. Brunson, Probate Judge, Florence County," and dated October 1, 1913.
There is some question whether the summons and petition were personally served upon the plaintiff herein, Robert J. Muldrow; but from the view which we take of the case, we do not think it necessary to go into that question, for the reason that our conclusion that the Court of Common Pleas was without jurisdiction to entertain the proceeding, precludes the necessity of considering any other question.
At the April term, 1914, of the Court of Common Pleas, the case came up for trial before his Honor, Special Judge Ramage. A day or two before the trial commenced, upon the application of certain parties connected with the case, his Honor, Judge Ramage, on April 30, 1914, signed an order appointing C.J. Gasque, Esq., guardian ad litem for the infant defendants, remaindermen, who had been included among the respondents to the petition under the order of his Honor, Judge Rice. Mr. Gasque filed a formal answer for the remaindermen, including the plaintiff, and the trial proceeded. Mr. Arrowsmith, representing the proponents of the will, did not take an active part in establishing the will, "as it was evident that the family had decided not to fight the case further." (Judge Dennis' decree.) Mr. Gasque, however, did take an active part, representing the remaindermen, and apparently produced all available witnesses to establish the will. The contestants produced witnesses to establish the testamentary incapacity of the testator, and the case was submitted to the jury, apparently without argument. The result was as before — a verdict of "no will." It does not appear that a motion for a new trial was made or an appeal taken.
Consequent upon the verdict of "no will," a judgment roll was made up and filed. *Page 530
Thereupon the heirs of Robert J. Muldrow, Sr., proceeded to subdivide all of the real estate of which he died seized and possessed, as if there had been no will; and the land in question in this action was conveyed by all of the other heirs of the deceased to the widow, Annie G. Muldrow. This conveyance was executed in 1914, and she continued in possession until her death, at some time, not stated in the record, prior to December, 1923.
After the death of Annie G. Muldrow, the widow, her heirs at law instituted an action for the partition of her real estate, including that involved in the present action, which resulted in a decree of sale for partition, dated December 19, 1923, at which sale the defendant S.T. Burch purchased the property now involved, at a fair price, we assume.
The plaintiff, who was born June 12, 1900, and who was less than 14 years old when the judgment of "no will" was entered upon the verdict rendered before Judge Ramage, in May, 1914, has instituted this action to have the Court adjudicate that judgment is void. The action was commenced, as already stated, on July 16, 1924.
The complaint contains a detailed statement of the facts hereinbefore in substance, set forth. The plaintiff relies upon three grounds:
(1) That the summons and petition were not served personally upon him.
(2) That the verdict and judgment were obtained by fraud and collusion between the proponents and contestants of the will.
(3) That the Court of Common Pleas which rendered the judgment of "no will" was without jurisdiction to entertain the issue of "will or no will," except upon appeal from the Probate Court.
It appears from the record before us that only the defendant Burch served an answer to the complaint. He set up various defenses, none of which affect the conclusion which this Court has reached upon the single point in the case, that *Page 531 the Court of Common Pleas did not have jurisdiction to entertain the issue of "will or no will."
By an order of his Honor, Judge Shipp, dated September 13, 1924, it was referred to the Master of Florence County to take the testimony and report the same. On September 19, 1924, the testimony was taken, and on the 24th it was filed with the Clerk of Court. The case was heard by his Honor, Judge Dennis, in the fall of 1924, and on February 23, 1925, he filed a decree overruling all of the grounds taken by the plaintiff and dismissing the complaint. From that decree the plaintiff has appealed.
We may pass by the first and second grounds above stated, upon which the plaintiff relies to vacate the judgment of May, 1914, for the reason that our conclusion as to the third renders a consideration of them unnecessary.
The vital question in the case is that raised by the third ground, above stated.
It will be noted that the will was first probated by the Judge of Probate in common form. Under the statute, 3 Code, 1922, § 5351, Subd. 2, such probate "shall be good," unless some one interested in invalidating the paper as a will gives notice to the Probate Judge, within four years after the probate, that he requires the will to be proved in due form of law. The statute then defines what shall be "due form of law" thus:
"The Judge of Probate shall require the party producing the will for probate, to prefer a petition in writing, praying to be permitted to swear and examine witnesses upon the same, for the publishing or confirming thereof; and, thereupon, all such persons as would have been entitled to distribution of the estate, if the deceased had died intestate, shall be summoned to answer the petition, in like manner as is provided for the summons of parties to civil actions in the Courts of Common Pleas; whereupon he [the Judge of Probate] shall, after swearing all the subscribing witnesses to the same, proceed to examine severally, and to take down *Page 532 in writing such depositions of other witnesses as are made for or against the confirmation of the will, upon all matters touching its legal validity, or formal execution; and, in case the proof be sufficient, he shall, by his decree, pronounce for the validity of the will."
The notice required of the contestants was given; the Judge of Probate extended it to the proponents of the will, the executor and executrix, who filed the petition provided for in the statute; the Judge of Probate then issued a summons requiring the respondents named in the petition to make answer thereto, and had the same duly served upon the respondents; a day was set for the hearing of testimony pro and con the confirmation of the will; the proponents and the contestants and their attorneys met in the Probate Court. Then a departure from the statutory procedure occurred — not an unnatural one, in view of the declaration of the Court in the case of Myers v. O'Hanlon, 12 Rich. Eq., 203:
"In truth, the validity of contested wills is tried and determined practically in the Court of Common Pleas. The primary decree of the ordinary in such controversies is regarded by the parties as comparatively immaterial. It is upon the appeal to the law Courts that the actual contest, the substantial trial, really occurs."
The attitude of the counsel manifestly was, why go through the tedium of a trial in the Probate Court when, however decided, the case must be fought over in the Common Pleas Court? As we remarked, not an unnatural conclusion; but the question is, however convenient: Did that invest the Common Pleas Court with jurisdiction?
Article 5, § 19, of the Constitution, provides:
"The jurisdiction in all matters testamentary and of administration * * * shall be vested as the General Assembly may provide."
Section 168, Code Civ. Proc., 1922, provides:
"The probate of the will and the granting of administration of the estate of any person deceased shall belong to the *Page 533 Judge of Probate for the County in which such person was last an inhabitant. * * *"
Section 5351, Vol. 3, Code, 1922, prescribes, as we have seen, a specific course to pursue in the probate of wills, both in common form and in due form of law; and as to proof in due form of law, the course is outlined with particular detail. The duties in respect to both forms of probate, aredevolved upon the Judge of Probate. As to proof in common form, that too is outlined, and it is provided that that form of proof "shall be good," unless proof in due form is demanded and consummated in the manner therein prescribed.
In Ex parte Lewie, 17 S.C. 153, it is held:
"The Court of Common Pleas is the general fountain of justice, and where the rights of a citizen, either derived from the common law or the statutes, are invaded and the powerto protect is conferred upon no special jurisdiction, he may seek redress in that Court. But where rights are created by statute, to be obtained and protected in a special manner specified in the act by a special tribunal, no other Court can assume jurisdiction. On the contrary, parties interestedmust pursue the course prescribed, and must seek the aid ofthe tribunal upon which the power to grant or protect hasbeen conferred."
In the case of Myers v. Ham, 20 S.C. 522, it is said:
"Under the statutes upon the subject of homestead, the Circuit Court is without original jurisdiction therein. Such jurisdiction has not been conferred upon this Court either on its law or equity side. The act of force in reference to homesteads prescribes the mode of obtaining it in clear and distinct terms, and provides the necessary machinery to that end, suited to all cases where the right has attached, * * * where a right is provided by statute, to be enforced in a prescribed mode, no other can be resorted to" — citing the Lewiecase. *Page 534
In Jennings v. Abbeville County, 24 S.C. 543, it was held that under the Constitution of 1868 (the decision was in 1885, prior to the Constitution of 1895) and the laws passed since, the Board of County Commissioners have exclusive jurisdiction to audit and provide payment for county claims, subject to the right of appeal, and that therefore no action can be instituted against the County in the Court of Common Pleas.
In view of the provision for appeal from the Probate Court to the Court of Common Pleas upon the issue of "will or no will," the following extract from the Jennings case is exceedingly apposite:
"It is, however, further said, that the Court of Common Pleas is a Court of general jurisdiction, and as such has jurisdiction of all matters not given exclusively to an inferior tribunal or expressly forbidden to that Court. The principle contended for may be correct, but, as we think, does not apply to this case. Jurisdiction is expressly given to the Board of County Commissioners, but not to the Court of Common Pleas, without, however, any express negation. Under some circumstances, this might give the Court of Common Pleas concurrent jurisdiction; but in this case we think it does not. First, the same instrument (Constitution) defines the powers and duties of both, giving original jurisdiction to the Board of County Commissioners withonly the right of appeal to the Court of Common Pleas; * * * and in such cases the powers given and the mode and manner of their exercise are in their nature exclusive" — citing the Lewie case and others.
In Moore v. Barry, 30 S.C. 530; 9 S.E., 589; 4 L.R.A., 294, the Court said:
"When a statute creates a new right, and at the same time prescribes a special proceeding for enforcing the right, that course must be followed by any one claiming that right."
See, also, Ex parte Brown, 37 S.C. 181; 15 S.E., 926. *Page 535
In Meier v. Kornahrens, 113 S.C. 270; 102 S.E., 285, the Court, in discussing what is now Section 5351, Vol. 3, Code, 1922, says:
"But this not an equity case, nor does the appeal involve issues of fact arising out of a case of an equitable nature * * * [citing cases]. It is rather in the nature of aspecial proceeding under a statute."
Section 187, Code Civ. Proc., 1922, provides for an appeal from the Probate Court to the Court of Common Pleas, involving the correctness of any "final order, sentence or decree" of the Probate Court. It has been held in numerous cases that this section gives the losing party in a proceeding before the Probate Court, under the second subdivision of Section 5351, Vol. 3, Code of 1922, the right to appeal to the Court of Common Pleas and there have the issue triedde novo.
In the case of Myers v. O'Hanlon, 12 Rich. Eq., 204, cited with approval in the case of In re Solomons' Estate, 74 S.C. 189;54 S.E., 207, it is said:
"In legal construction, the Court of Common Pleas has but appellate jurisdiction in such cases."
The same section of the Code, Section 168, Code Civ. Proc., 1922, which confers upon the Court of Probate, or the Probate Judge, as it is stated, the Probate of Wills, confers upon that Court or officer the granting of letters of administration. If the Court of Common Pleas has concurrent jurisdiction with the Probate Court in the one case, it has it in the other. We do not apprehend that it would be contended that the Court of Common Pleas had jurisdiction to grant letters of administration.
We are not called upon to explain or justify the legislation which apparently imposes the inconvenience of trying the same issue twice. There may have been good reasons for such legislation, or there may not; with that we are not concerned. It is sufficient to say that ita scripta est. It may be suggested that, in view of the fact that in a large proportion *Page 536 of the cases involving the issue, the parties become satisfied with the finding of the Probate Court, such preliminary investigation and finding are in the interest of the desired speedy administration of estates; or that the issue may be only one of law, the other questions being settled or conceded before the Probate Court, which can be quickly settled upon appeal.
So that we find: (1) That the Court of Probate is vested with jurisdiction to try such an issue; (2) that the Court of Common Pleas has not been vested with such jurisdiction; (3) that the Court of Common Pleas has been vested with only appellate jurisdiction to review the judgment of the Probate Court upon such an issue; (4) that the Probate Court has rendered no judgment in the matter from which an appeal could be taken.
It "follows as the night the day" that the Court of Common Pleas was without jurisdiction to entertain the issue of "will or no will" in this case.
As to the matter of the Statute of limitations barring the action which has been instituted: If, as we have concluded, the Court of Common Pleas was without jurisdiction to render the judgment of "no will" in May, 1914, the judgment is void. The effect of a void judgment is thus expressed by Mr. Freeman in his work on Judgments (4th Ed.), § 117:
"A void judgment is, in legal effect, no judgment. By it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress. The first and most material inquiry in relation to a judgment or decree then is in reference to its validity. For if it be null, no action upon the part of a plaintiff, no inaction upon the part of a defendant, *Page 537 no resulting equity in the hands of third persons, no power residing in any legislative or other department of the government, can invest it with any of the elements of power or of vitality. It does not terminate or discontinue the action in which it is entered, nor merge the cause of action; and it therefore cannot prevent the plaintiff from proceeding to obtain a valid judgment upon the same cause, either in the action in which the void judgment was entered or in some other action."
"Where a judgment is void upon its face, it may be vacated upon proper application regardless of what length of time has interposed since its entry." 15 R.C.L., 692.
"But when the application is not made under the statute, but invokes the inherent power of the Court, the statutory limitation is generally decreed not applicable, and the power to vacate in proper cases is not lost by mere lapse of time or the expiration of the term. Within such rule fall cases where the judgment is vacated because it is void for want of jurisdiction." 34 C.J., 256.
"The power of the Court to vacate a judgment which appears to be void upon an inspection of the judgment roll is inherent. It does not expire by lapse of time." Peoplev. Creene, 74 Cal., 400; 16 P., 197; 5 Am. St. Rep., 448.
"If a judgment is void for want of jurisdiction over the parties or the subject-matter, there is no doubt that it may be vacated upon motion, no matter what length of time has interposed since its entry * * * [citing cases]. Under these circumstances, that which purports to be a judgment is not such in fact or in law." Note 60 Am. St. Rep., 642.
"Code Civil Proc. N.Y., § 724, limiting the time within which application should be made for relief from a decree taken through `mistake, inadvertence, surprise, or excusable neglect,' does not apply to a decree which the Court had no power to make. In such case there is no limitation."In re Underhill (Sur.), 9 N.Y.S., 457. *Page 538
"A judgment void for want of jurisdiction over defendant's person may be vacated irrespective of the lapse of time." Lushington v. Seattle Auto Driving Club,60 Wn., 546; 111 P., 785.
"It is universally conceded that a judgment void for want of jurisdiction over the person of the defendant may be vacated on motion, irrespective of the lapse of time." Danev. Daniel, 28 Wn., 155; 68 P., 446.
A fortiori, where the Court is without jurisdiction to entertain the issue.
It has been suggested that the attack upon the judgment of May, 1914, is a collateral attack, and should have been made by motion in the proceeding in which it was rendered. This rule applies to judgments voidable; it does not apply to judgments void upon the face of the record. "In every proceeding of a judicial nature there are one or more facts which are strictly jurisdictional, the existence of which is necessary to the validity of the proceedings, and it is a fundamental rule that a judgment or decree which the Court has no jurisdiction to pronounce is void. It is, in legal effect, no judgment, and has no force either by way of evidence or estoppel, but leaves the parties litigant in the same position they were in before the trial. Unless jurisdiction exists, the judgment is not due process of law and is ineffectual for any purpose. No rights are in any way affected by it, and from it no rights can be derived, and all proceedings founded thereon are invalid. A decision of a Court not having jurisdiction, being thus ipso facto void, may be attacked in any proceeding, direct or collateral, in which a person seeks to assert a right under such pretended adjudication." 15 R. C.L., 841.
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