July 11, 1917. The opinion of the Court was delivered by This action was brought in the Court of Common Pleas for Kershaw county, in March, 1900, and was heard by Judge Townsend, who rendered his decree, dated September 12, 1900. The decree and the stipulation of counsel upon which the issues were submitted to the Court will be reported. Judge Townsend states clearly the history of the litigation, the issues made by the pleadings, and that upon which defendants specially relied in argument before him. There was no appeal from his decree, and nothing was done by defendants to obtain relief from it, until 1916, when they applied to Judge Mauldin, at his chambers, in Richland county, for the order appealed from. The first order, dated February 11, 1916, permits defendants to take the deposition of their mother, to perpetuate her testimony, to be used in the defense of this action, if the Court should grant their proposed motion to open the judgment and allow them to defend anew, or, in the prosecution of another action to *Page 8 recover the land, on the falling in of the life estate of their mother, if that should be allowed. The second order, dated May 22, 1916, modifies Judge Townsend's decree, so as to permit defendants to move the Court for the order above indicated. The appeal from the first was heard at the last October term, that from the second at the last April term of this Court. As they depend upon the same facts and principles, both appeals will be considered in this opinion.
The preliminary objection of defendants that these orders are not appealable is untenable. They not only involve the merits, but affect substantial rights of plaintiffs.
The validity of Judge Townsend's decree is now assailed, 15 years after its rendition, and 10 years after the youngest infant defendant became of age. No excuse is offered for such laches, other than the alleged discovery, in December, 1915, of an alleged false and misleading statement in the stipulation upon which the issues were submitted to the Court. The excuse is insufficient; for that stipulation has been in the record all these years, and the alleged false statement appeared upon its face, and was, therefore, as open to discovery upon investigation of the record in 1900 as it was in 1915.
The stipulation was signed by J.T. Hay and W.D. Trantham, as attorneys for plaintiffs. Both have since died; and defendants' laches has deprived plaintiffs of their testimony relative to the alleged false statement made by them, and other alleged irregularities in the proceedings, in which they were interested as parties or attorneys, with the details and circumstances of which they were more familiar than any person now living. But Hay and Trantham were both men of honor and integrity of character, whose standing at the bar should and does repel any inference of intention to deceive or mislead the Court or opposing counsel; and the known skill, ability and diligence of the Court and opposing counsel (Mr. C.L. Winkler *Page 9 and Hon. M.L. Smith, now Judge of the Fifth Circuit) warrant the inference that the alleged false statement had no such injurious effect upon the rights of defendants as their counsel would have us believe.
The statement which is too harshly characterized as having been false and misleading and inferentially as having been intended to be so, is found in the third paragraph of the stipulation. It is:
"That J.T. Hay and W.D. Trantham would testify that the return of service of summons in the first mentioned case on the minor defendants, except Henry C. Barnes, was made by the affidavit of Thos. S. Meyers, in 1880; that such return was filed with the record by J.T. Hay," etc.
Turning to the stipulation, it will be seen that the first mentioned case is that of J.T. Hay v. Sarah Barnes, which was an action to foreclose the mortgage given by Mrs. Barnes to Hay for the same land, which Hay had bought at the sale for foreclosure of the Alden mortgage. The action of J.T. Hay v. Sarah Barnes had no minor defendants. It was not brought until 1890. The judgment therein was not in question. It had no bearing on the issues, except to show that plaintiff's chain of title was derived through that sale from the original or Alden mortgage. The reference, therefore, to that case, as the one to which the testimony of Hay and Trantham was applicable, was so manifestly a mere clerical error that it is inconceivable that it could have misled any one. It must have been as apparent then as it is now that it was intended to refer the testimony of Hay and Trantham to the record of 1880, and we have no doubt it was so understood and treated by the Court and all the attorneys in the case.
Attentive consideration of Judge Townsend's decree shows that he had before him the record in each of the previous actions. It shows, too, that he examined in detail and with care those of 1875 and 1880. He must, therefore, have referred the testimony, as to the last proof of service *Page 10 on the minor defendants, to the record of 1880, for it was applicable to no other, as that was the only one in which there were minor defendants, except the record of 1875, and that showed on its face that the minor defendants had been served by J.T. Mickle. When Judge Townsend found, as he did, that the minor defendants in the action of 1880 had been served with the summons, he must have based that finding on the testimony of Hay and Trantham, as referable to that case, for otherwise there was no proof of such service before him, as there was none in the record. Its absence unaccounted for would certainly have arrested his attention, for the pleadings put the validity of that judgment in issue. The erroneous reference in the stipulation was clearly harmless.
As to the alleged irregularities in the appointment of the guardian ad litem for the minor defendants in the action of 1880, Judge Townsend had in mind, no doubt, several decisions of this Court, particularly Lyles v. Haskell,35 S.C. 391, 14 S.E. 829, and Robertson v. Blair,56 S.C. 96, 34 S.E. 11, 76 Am. St. Rep. 543, in which it had been held that service of the summons upon minors, in the manner prescribed by the statute, brings them within the jurisdiction of the Court, and that subsequent irregularities in the appointment of a guardian ad litem for them does not render the judgment void, but, at most, only voidable; and that such judgment will not be avoided, unless it appears that substantial injustice has been done to the minors, especially when innocent purchasers have acquired rights under the judgment.
No doubt, too, counsel who then represented defendants had those decisions in mind; and, being satisfied, from the testimony of Hay and Trantham, that the minors had been legally served with the summons, and, perhaps, being informed more in detail of the facts attending the appointment of the guardian ad litem, they became satisfied that the irregularities were more apparent than real, could easily be *Page 11 explained, and were not of substantial merit, and, for those reasons, they decided to make their chief assault upon the judgment of 1875, which authorized the Alden mortgage, upon the validity of which their clients' cause really depended.
And that was Judge Townsend's opinion; for he rested his decree upon the estoppel of that judgment, holding that it was "conclusive of all questions that should or could have been raised by any of the parties then before the Court." He mentions the judgment of 1880, only as an additional ground of estoppel. Therefore, it would not help defendants, if it had been held then or if it should be held now, that they were not properly made parties to the action of 1880, because the holding that they were concluded by the judgment of 1875 was equivalent to holding that, though they may have been proper parties to the action of 1880, their presence was not necessary to enable the Court to convey a good title in fee simple to the purchaser under the judgment in that case, for the rights of the mortgagee had become vested under the judgment of 1875; and their father and mother, who had executed the mortgage for them by order of the Court, were before the Court.
But be all this as it may, the same issues that are now sought to be made by defendants with regard to the validity of the judgments of 1875 and 1880 were made, or could and should have been made, before Judge Townsend; therefore, upon well settled principles, his decree is conclusive of the validity of both of those judgments.
There is another reason why these orders cannot be sustained. A Judge at chambers cannot set aside, modify, or open a final judgment. Middleton v. IceCo., 97 S.C. 457, 81 S.E. 157, and cases cited by the Court.
Judge Mauldin's orders allow defendants to do what Judge Townsend had enjoined them not to do. To be sure *Page 12 a Judge at chambers can temporarily stay the execution of a final judgment. But these orders were not of that nature. Nothing was being done or about to be done in the execution of Judge Townsend's decree which would have affected the rights of the parties. The decree was self-executing.
It by no means follows, as suggested, that, if a final injunction should be rendered against a party by fraud, accident, mistake, or even by his excusable neglect, or in a case where the Court had not acquired jurisdiction of his person, that he is remediless. Certainly he could apply to the Court that granted such injunction for relief, without being in contempt, or, if an attempt were being made to execute such a judgment, so as to change the status or injuriously affect the rights of the party, a Judge at chambers could stay its execution, until application could be made to the Court for permanent relief.
As some of the petitioning defendants are residents of this State, the rule of Court requiring nonresident plaintiffs to give security for costs is not applicable; hence there was no error in refusing plaintiff's motion to require defendants to file security for costs.
We sympathize with defendants in the loss of their property. But their own parents asked to be allowed to mortgage it, on the ground that it would best promote their interest, in that it would secure for them proper maintenance and education, which otherwise they were unable to give them. As we see it now in the light of subsequent events, the request was unwise, and unwisely granted. Their parents ought not to have been allowed to mortgage so much as 1,862 acres of land to secure a debt of $3,000.
However, the duty and responsibility of safeguarding the rights of infants rests primarily upon the Judges of the Circuit Court. We must presume that they scrutinize with jealous care, as they certainly should, every proposed order or decree affecting the rights of those who are incapable of protecting themselves, and see *Page 13 to it that their interests are not improperly or unnecessarily endangered, or sacrificed.
Regrettable as their situation is, defendants have had their day in Court. There must be an end to litigation. It cannot go on forever. Sound public policy demands that judgments and judicial sales be upheld, where it can be done without violating any statute or settled principle of law, especially when the rights of innocent purchasers have supervened.
Orders reversed.