Goodgion v. Gilreath

The opinion of the court ivas delivered by Mr. Chiee Justice-Simpson.

The appellant brought the action below against the sheriff of Greenville County under the following circumstances: a judgment had been obtained against the appellant and two others, the Latimers, in an action on a note signed by “Goodgion & Latimers,” alleged to have been given as partners, the appellant being one, as alleged. This was before a trial justice, before whom the'appellant appeared, interposing the defence that she was not a partner. Upon the evidence the trial justice gave judgment for $73.35. It also appeared at the trial from the testimony that the appellant ivas a married woman at the time the note was given, but the defence relied*on was the denial of the partnership. A transcript of the judgment was filed in the clerk’s office of the county and execution issued. This transcript and the execution were both entitled against “Goodgion & Latimers,” the full names being omitted. While these papers were on file in the proper offices, the appellant obtained a judgment against one Jno. D. Sullivan, for the rental of certain lands belonging to her as a separate estate. Upon execution on this judgment the sheriff collected certain moneys •which he applied ($40.50) to the execution against “Goodgion & Latimers” above.

Whereupon the appellant brought the action below before a trial justice, who decreed for the defendant, which, upon appeal to the Circuit Court (his honor, Judge Norton, presiding), was affirmed. The ground taken below for a reversal of the trial justice judgment was, that the appellant, being a married woman, could not be a member of a partnership, and therefore the first judgment against her, to which her money in the .sheriff’s hands had been applied by him, was absolutely void and a nullity, and the payment thereon wrongful and illegal. The appeal here raises the same question.

We do not deem it necessary to consider the first branch of this proposition,, because, assuming it to be correct, the important question still arises whether or not the judgment and execution standing open against the appellant should not be a protection *391 to the sheriff in the payment thereon which he made. There had been no appeal from this judgment. It was allowed to be transeripted without objection or protest, so far as the record shows. True, the full names of the defendants were not stated therein, but this, we think, was a mere irregularity, not fatal, and especially as the money applied, ivas of the right party and against the right party, supposing that the sheriff had the right to apply at all.

Assuming, then, that the original judgment against the appellant was void, which is the strongest position for the appellant— that it was void and a nullity for an underlying fact known to the appellant, but not known to the sheriff, and not appearing upon its face — would that legalize the action here ? In response to this question, we think it only necessary- to refer to the case of Bragg v. Thompson, 19 S. C., 572. In that ease a judgment had been obtained before a trial justice against a dead man, who, of course, had never been served with summons, nor was he in any way represented at the trial. A transcript of this judgment had been filed in the clerk’s office and execution issued, under which the land of the deceased had been sold to a purchaser who paid the purchase money; afterwards the land was recovered from him, because of the void judgment unde'r which he had bought, and he brought action against the sheriff for the money paid in. The court held that in so far as the sheriff had paid out the money, plaintiff could not recover. We think this case is exactly in point here, both in principle and also as to the facts, which are nearly all fours with this case. For the reasoning leading to the conclusion there by Mr. Justice McGowan, and which is entirely applicable here, and for the abundant authority upon which he based said conclusion, see that case.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.