36 S.E. 495 (S.C. 1900), Burckhalter v. Jones

Citation:36 S.E. 495, 58 S.C. 89
Opinion Judge:GARY, A. J.
Attorney:G. W. Croft & Son, for appellant. Henderson Bros., for respondent.
Case Date:June 28, 1900
Court:Supreme Court of South Carolina

Page 495

36 S.E. 495 (S.C. 1900)

58 S.C. 89




Supreme Court of South Carolina

June 28, 1900

Appeal from common pleas circuit court of Aiken county; James Aldrich, Judge.

Action by T. D. Burckhalter against J. B. Jones. Judgment of a magistrate for plaintiff was set aside by the circuit court, and plaintiff appeals. Reversed.

G. W. Croft & Son, for appellant.

Henderson Bros., for respondent.


This action was commenced before a magistrate in Aiken county on the 16th of August, 1898. The defendant is not a resident of this state, but resides in Augusta, Ga. The magistrate granted an order that service of the summons and complaint be made upon the defendant by publication.

The following statement of facts appears in the record: "Thereupon the plaintiff filed with the magistrate an affidavit to obtain an attachment. Said affidavit [58 S.C. 90] was in due form and according to law. Upon said affidavit the magistrate, on August the 17th, 1898, issued a warrant of attachment in favor of the plaintiff against the defendant. The sheriff, acting under said warrant of attachment, levied upon the personal property of the defendant found in this state and county, and on the 24th day of August, 1898, he served copies of the summons and complaint in the city of Augusta, Ga., that being the place of his residence." It is admitted that the copy of the summons served on the defendant had the name of the magistrate signed to it by the attorney for the plaintiff, but that neither upon the original nor upon the copy summons does the handwriting of the magistrate appear, but that both are entirely in the handwriting of the plaintiff's attorney. The defendant made default. The plaintiff appeared before the magistrate in person, and proved his cause, whereupon Magistrate Weeks entered the following judgment by default: "Case called. Defendant not appearing, and plaintiff proving his case, judgment given against him in favor of the plaintiff for $10.61 and $6.60 costs. This 23d day of September, 1898. L. R. Weeks, M. A. C. At this stage the defendant filed his petition for certiorari, as follows: '*** The petition of John B. Jones respectfully showeth: That as set forth in the annexed affidavit of the petitioner and of E. P. Henderson, the judgment was rendered against your petitioner on the 24th day of August, 1898, at the suit of T. D...

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