Yates v. Gridley

Citations

• 16 S.C. 496
• 1882 S.C. LEXIS 23

Syllabus

<p>1. In action for partition, the clerk of court issued an order for tlie publication of a summons to the non-resident co-tenants (but made no direction for service through the mail) upon plaintiff’s affidavit “that defendants are not residents of this, but are residents of the State of New York, and that their post-office is unknown to deponent and cannot be ascertained, notwithstanding due diligence has been employed, nor can they be found in this State after due search for them.” Defendants had no notice of the action until after sale. Held, on motion afterwards made by defendants to vacate the judgment, that the order of the clerk was valid, and that it was not necessary that the affidavit should state that the sheriff had made search, or show the facts upon which the statements of the affiant were based, if the clerk was satisfied by the allegations of the affidavit. This case distinguished from Smith & Melton v. Walker, 6 S. O. 174, which arose under the attachment act.</p> <p>2. Hill v. Watson, 10 S. C. 275, approved, and the act of 1869 for vacating erroneous judgments construed, and limited, in equity causes, to cases in which there is error of law apparent on the face of the record, or where evidence has been newly discovered.</p> <p>3. Where only two commissioners in partition acted, the third not having boon notified, and the return was confirmed by the Circuit judge with knowledge of these facts, Held, that the return was sufficient, and that the judgment of confirmation could not afterwards be set aside by another Ciicuit judge because only two commissioners had acted. 1</p> <p>4. A commissioner in partition, who is thoroughly acquainted with the land to be partitioned, may act without again going upon the land, and, after consultation with the other commissioners, agree upon a return that a division is impracticable.</p> <p>5. A defendant made a party by publication to an action for partition, cannot, under Section 158 of the code, be admitted on mot