Baker v. Irvine

• Decision Date: 13 July 1901
• Citation: 61 S.C. 114,39 S.E. 252
• Parties: BAKER et al. v. IRVINE.
• Court: South Carolina Supreme Court

39 S.E. 252

61 S.C. 114

BAKER et al.

v.IRVINE.

Supreme Court of South Carolina.

July 13, 1901.

APPEAL—DISMISSAL—REINSTATEMENT — MAGISTRATE'S JURISDICTION.

1. An appeal will be reinstated after dismissal for failure to file points and authorities, where such failure was caused by sickness of appellant's attorney.

2. Const, art. 5, § 21, gives magistrates jurisdiction in such cases as the general assembly shall prescribe, provided it shall not extend to cases where more than $100 in value is claimed, or where the title to real estate is involved, or to cases of chancery. Section 23 prescribes that every civil action shall be brought before a magistrate in the county where the defendant resides. Held that, as the general assembly has not restricted territorial jurisdiction of magistrates in Greenville county as to civil actions, such jurisdiction extends throughout the county.

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

Action by J. A. and W. C. Baker against W. H. Irvine. From an order reversing a judgment of the magistrate, plaintiffs appeal. Appeal dismissed for failure to file authorities. Motion to reinstate appeal granted, and judgment affirmed.

For former opinion, see 36 S. E. 742.

Blythe & Blythe, for appellants.

Carey & McCullough and Shuman & Mooney, for appellee.

POPE, J. On the 2d day of November, 1899, the defendant was served with the following summons: "State of South Carolina, County of Greenville. By G. W. Nicholls, Esq., to W. H. Irvine, Defendant: Complaint having been made unto me by J. A. Baker and W. C. Baker that you are indebted to them in the sum of $100 on account of damages for wrongfully taking from their possession a certain dark horse mule belonging to them jointly, seizure made October 30, 1899. This is therefore to require you to appear before me in my office in Athens, S. C, on the twenty-first day from service of this summons, at 12 o'clock m., to answer to the said complaint, or judgment will be given against you by default. Dated 2d day of November, A. D. 1899. G. W. Nicholls, Magistrate. [Seal.] Blythe & Blythe, Plaintiffs' Attorneys."

The cause was called for trial on 23d day of November, 1899, and on motion the trial was postponed until the 7th day of December, 1899, on which latter day the magistrate gave judgment against the defendant for $65. An appeal was duly taken from said judgment to the court of common pleas for Greenville county, and in that court the cause was placed on the calendar of said court for trial at the November term, 1900, of said court; whereupon, at the call of said cause in the said court of common pleas, the defendant made the motion of which due notice had already been given, to wit:

"You will take notice that upon the opening of the court of common pleas for the said county and state, on Friday, November 30, 1900, in the court house, Greenville, S. C, at 12 o'clock, or as soon thereafter as counsel can be heard, we will move his honor, the presiding judge, for an order vacating the judgment in the above-entitled cause, upon the following grounds: (1) That the magistrate, to wit, G. W. Nicholls, Esq., who rendered the said judgment, was without jurisdiction of the person of this defendant or of the cause of action set forth in the summons, and that said judgment is therefore a nullity. The said W. H. Irvine, at the time the said action was commenced and judgment rendered, was and is now a resident of Greenville township, county and state aforesaid, and the said magistrate was not at that time a magistrate for Greenville township, but was a magistrate for Bates and Paris Mountain townships, and under the law then in force he had no jurisdiction of this defendant residing outside of his territorial limits. (2) Because it appears that the court had no jurisdiction of the cause of action sued on, the premises upon which the alleged distress for rent was made being situated at that time and now in Greenville township, and the said magistrate residing in Bates township, and the cause of action sued on being for damages which the plaintiffs contend they sustained by reason of such distress, which they allege was unlawful. You will further take notice that the said motion will be heard upon the record in said case, which is now on file in the clerk's office, by reason of the appeal taken by the defendant in said cause, and the return of the magistrate for the purposes of the said appeal, and the original record sent up in consequence thereof; also upon the affidavits which were previously served upon you in support of the previous morion given to dismiss the said appeal for want of jurisdiction, upon the affi-davit of W. H. Irvine hereto attached, and such other affidavits as may in the meantime be served upon you, and the entire record and proceedings in the said cause, reference to which, for the purposes of this motion, is hereby craved.

"State of South Carolina, County of Greenville. Personally comes W. H. Irvine, who upon oath says that he is the defendant in the above-entitled cause; that the defendant was sued in the said case before G. W. Nicholls, Esq., magistrate, for damages, the plaintiffs alleging that the defendant wrongfully took from their possession certain property mentioned in the said complaint; that at the time the said action was instituted, as well as now, this defendant was a resident of the city of Greenville, township of Greenville, county and state aforesaid; that, at the time the said action was instituted and judgment rendered, the said G. W. Nicholls, Esq., the magistrate who rendered the said judgment, was a resident of Bates township, county and state aforesaid, and was magistrate for Bates and Paris Mountain townships; that the premises where the alleged unlawful seizure of their property took place was and still is situated in...