Dill v. Durham

• Citation: 35 S.E. 3,56 S.C. 423
• Parties: DILL v. DURHAM.
• Decision Date: 27 February 1900
• Court: United States State Supreme Court of South Carolina

35 S.E. 3

56 S.C. 423

DILL v. DURHAM.

Supreme Court of South Carolina

February 27, 1900

Appeal from common pleas circuit court of Greenville county; D. A Townsend, Judge.

Action by F. P. Dill against G. W. Durham. From a judgment of the circuit court reversing a judgment in favor of plaintiff plaintiff appeals. Affirmed.

McCullough & Martin, for appellant.

Adam C Welborn, for respondent.

GARY A. J.

The appeal herein is from the following order of the circuit judge: "The appellant has appealed to this court form a judgment rendered against him and in favor of the respondent on the 6th day of October, 1898, by W. J. McCain, as magistrate, under the act of 1887 (19 St. at Large, p. 1027) which locates him at Greers, in Greenville county, with general jurisdiction in the counties of Greenville and Spartanburg. The appellant at the time of the rendition of said judgment, and for four (4) years prior thereto, resided in the county of Spartanburg. At the hearing of the appeal, the appellant took the position that said judgment was null and void upon two (2) grounds: (1) That said magistrate had no power to tray said case and render said judgment, because the constitution of 1895 (article 5, § 23) provides, 'Every civil action cognizable by magistrates shall be brought before a magistrate in the county where the defendant resides;' (2) that said W. J. McCain had no power to try said case and render said judgment, because the said act of 1887 has been repealed by the act of 1892 (21 St. at Large, p. 275). The court sustains the appellant on both positions. It is therefore ordered that the appeal be, and the same is hereby, sustained, and the said judgment is hereby declared null and void." The record contains the following statement: "From this order the plaintiff in due time gave notice of appeal to the supreme court, and the defendant gave the plaintiff notice that he would move the supreme court to sustain the judgment below upon the additional ground that the plaintiff laid the venue before the magistrate in Spartanburg county, instead of Greenville county, which was one of the defendant's grounds of appeal to the circuit court."

The plaintiff's exceptions are as follows: "(1) His honor erred in holding that under the constitution of 1895 (article 5, § 23) Magistrate McCain had no jurisdiction; it being respectfully submitted that under the act creating Greers as a magisterial judicial district, and under the law the said magistrate, for the purpose of exercising the jurisdiction therein conferred, was a magistrate...