
    
      EX PARTE GRAY, IN RE ALLEN v. ALLEN.
    1. J urisdiction — Irregularity—Amendment—Guardian ad Litem — Minor.—Mere irregularities in the service of notice of motion for appointment of guardian ad litem on minors, and in the. appointment of and answer by the guardian, within the power of the Court to correct by amendment are not fatal to the jurisdiction of the Court over the persons of the minors.
    2. Limitation oe Actions — Setting Aside Judgment. — There is no statute in this State limiting the time within which a motion to vacate or set aside a judgment must be made, except in those cases provided in sec. 197 of Code. Following Ex parte Carroll, 17 S. C., 449.
    Before Earle, J., Hampton,
    October, 1896.
    Reversed.
    Motion by Sallie T. Gray et al. to set aside order of sale and partition in Sarah J. Allen against Leroy Allen et al.> made in 1884. Motion refused. Petitioner appeals.
    
      Mr. I.L. Tobin, for appellant,
    cites: Code, 137; 17 S. C., 435; 10 S. E. R., 262; sub. 2, sec. 155, Code; 17 S. C., 449.
    
      Messrs. W. S. Tillinghast and James IV. Moore, contra,
    cite: 23 S. C., 167; 42 S. C., 517.
    March 22, 1897.
   The opinion of the Court was delivered by

Mr. Justice Jones.

This is an appeal from an order of Judge Earle refusing to set aside a decree.of Judge Hudson made in the principal case October 18, 1884. On May 24, 1884, Sarah J. Allen, the life tenant of a tract of 3,500 acres of land in Hampton County, joining with her husband, John C. Allen, aud one or more adult children, brought an action against all her other children entitled to the remainder in said lands, asking the Court of Equity to authorize the sale or exchange and reinvestment of said land, in the interest of all parties concerned. On October 18, 1884, Judge Hudson made a decree in accordance with the prayer of the complaint, authorizing the sale or exchange and reinvestment of said property. This decree provided for the payment, out of the proceeds of the property, of a fee of $200 to W. S. Tillinghast and a fee of $150 to James W. Moore, for services rendered as attorneys in said cause. Nothing was done under this decree up to June 15th, 1889, when A. J. Salinas & Son brought suit to foreclose a mortgage executed after said decree by the life tenant, Sarah J. Allen, and' Paul H. Allen, one of the adult remaindermen, on their interest in said land. This suit terminated in a consent order for the sale of the interest of Sarah J. Allen and Pa'ul H. Allen in said premises, in which order it was provided that one-half of said attorneys’ fees, viz: $100 to W. S. Tillinghast, Esq., and $75 to James W- Moore, Esq., should be first paid out of the proceeds of said sale. The life tenant’s interest, as well as that of Paul H. Allen, was sold under this order in July, 1888, and bid off by A. J. Salinas & Son, who, although they have never received title from the clerk, went into possession of said land, ánd are now in possession. Some time after this the life tenant died, and the interests of the remaindermen fell in, and an action was commenced for the partition of said premises among the remaindermen and their cotenant, A. J. Salinas '& Son. Thereafter, on the 31st January, 1895, the petition herein was filed, and motion thereon made to vacate the said decree of October 18, 1884. The petition alleges that the decree is void, on the ground that the Court had no jurisdiction over the person of the minor defendants, they not having been served with a process as required by law; because there was no such person as John M. Gray, who answered as guardian ad litem for the minors, and no such person was ever appointed; because the scheme of the decree is inexpedient, and cannot now be carried out; that the decree is a cloud on the petitioners’ title, and prudent investors will not buy the land in view of the alleged jurisdictional defects. The petition further alleges that W. S. Tillinghast and James W. Moore have in equity and conscience no further claim in- the land. Messrs. Tillinghast and Moore answered, claiming their fees aforesaid to be valid and just and so adjudged by a decree of the Court.

Judge Earle, after hearing the motion, refused to grant the same, on the grounds (1) that the Court did have jurisdiction at least of the persons sui juris at the time of rendering the judgment; (2) that the motion to vacate the judgment was too long delaj'ed, it should have been made within five years after rendition. The petitioners appeal, alleging error on the several grounds set out in the “Case.”

We do not think- the Circuit Judge erred in refusing the motion on the ground first named. ‘The record shows proof by affidavit of the party serving, that a copy of the summons and complaint was served personally upon each of the. minor defendants, it shows the written acknowledgment by John C. Allen of service of “copies of the summons and complaint for each named” minor on John C. Allen, their father, with whom they resided; the petition of John C. Allen for the appointment of a guardian ad litem for the minor defendants, in which it is alleged that the summons and complaint had been served on each of the defendants; proof that notice of this application for appointment of guardian ad litem had been served on the infants over the age of fourteen, and also on Sarah J. Allen and John C. Allen, the parents of all the minors, with whom they resided; the order of Judge Hudson appointing J. M. Gray as guardian ad litem of the minors, reciting therein that the infant defendants had been properly served with copies of the summons and comjplaint, and that due service had been made of the notice of this application; the written consent of J. M. Gray to serve as guardian ad litem; and the answer of the guardian ad litem by James W. Moore, defendant’s attorney. This answer purports to be the answer of the minor defendants, all of whom are named in the title, but in reciting the names of the minors, answering through their guardian ad litem, the name of Eucy Allen is oinited, no doubt, accidentally. This answer styles J. M. Gray the guardian ad litem, or John M. Gray. By proof dehors the record it is shown that J. M. Gray, the guardian ad litem, is known as Joseph M. Gray. The objections to the answer of the guardian ad litem show mere irregularities, within the power of the Court to correct by amendment, and are not fatal to the jurisdiction. The proof of service, aided by the recitals in the orders, is sufficient. All presumptions must be indulged in favor of the jurisdiction of a court of general jurisdiction. To avoid such a judgment for want of jurisdiction the jurisdictional defects must appear affirmatively on the record. Clemson College v. Pickens, 42 S. C., 511.

On the second ground mentioned in Judge Earle’s order, we think he has erred. There is no statutory limitation in this State as to the time within which a motion to vacate or set aside a judgment must be made, except in those cases provided for in sec. 197 of the Code. Ex parte Carroll, 17 S. C., 449.

Judge Earle did not pass upon the other questions raised. Since all parties interested concur in wishing the decree of October 18, 1884, vacated, except the attorneys named, who merely desired to be protected in their right to the fees adjudged to be properly due them, and in view of the fact that the scheme of the decree has been barren of results and is now deemed inexpedient, because of the events that have transpired since the decree, we have concluded to render the following judgment: The judgment of this Court is, that the judgment of the Circuit Court be reversed (not, however, on jurisdictional grounds), and the decretal order of sale and reinvestment made in said cause October 18, 1884, be revoked and all proceedings thereunder restrained, 011 condition that the fees adjudged to be due W. S. Tilling-hast and James W. Moore, as attorneys in said cause, or whatever may remain due thereon, without interest, be paid or satisfactory arrangement for their payment be made on or before October 1st, 1897.  