Chitty v. Pennsylvania Ry. Co.

• Decision Date: 25 February 1902
• Citation: 40 S.E. 944,62 S.C. 526
• Parties: CHITTY v. PENNSYLVANIA RY. CO.
• Court: South Carolina Supreme Court

40 S.E. 944

62 S.C. 526

CHITTY v. PENNSYLVANIA RY. CO.

Supreme Court of South Carolina

February 25, 1902

Appeal from common pleas circuit court of Bamberg county; Buchanan Judge.

Action by F. W. Chitty against the Pennsylvania Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawrie T. Iglar, for appellants. Jno. R. Bellinger, for appellee.

GARY A. J.

The record contains the following statement of facts: "This was a motion to dissolve an attachment, the warrant for which was issued by the clerk of the court of common pleas for the said state and county on the 1st day of March, 1901. The summons, affidavit, and the bond were filed with the clerk of said court on the 1st day of March, 1901, and the complaint in the action was filed on the 20th day of March, 1901. The complaint, affidavit, bond, and warrant of attachment, with the indorsement upon each, are fully set out in the 'case.' It is admitted that application and order for publication of summons were duly made and summons published. The motion was heard at the April, 1901, term of the said court, by his honor Judge Buchanan, upon the above-mentioned papers, and the indorsements thereon, who took the papers and on the 19th day of April, 1901, filed his order refusing to dissolve the attachment. It is admitted that the questions involving the character of the property attached, under the interstate commerce law and the jurisdiction of the court were made at the hearing before Judge Buchanan. No notice in writing has ever been served upon the defendant's counsel of the filing of the said order, but on the 31st day of May, 1901, defendant's counsel served upon the plaintiff's counsel a notice of intention to appeal from said order to the supreme court, and time for service of the proposed case was extended indefinitely by the plaintiff's counsel." The plaintiff's affidavit was as follows: "F. W. Chitty, the plaintiff above named, being duly sworn, says: "(1) That on or about _____ day of _____, 1899, he shipped from Olar, in said state and county, nine cars of melons, consigned to Phillips & Sons, New York. That said cars of melons were received from him by the Florida Central & Peninsular Railway as his property, and were forwarded and delivered to the defendant at the point of connection with its line in a reasonable time after shipment, but that said defendant neglected to transfer and deliver said melons to said Phillips & Sons at New York, the point of destination, for a very unreasonable time, to wit, for fourteen days, by reason whereof many of the said melons were spoiled and became and were a total loss to plaintiff, and the whole were worth much less than they would have been had they been delivered at the proper time, to his damage $603, and deponent believes he is justly entitled to recover said sum. (2) That the defendant is a foreign corporation, duly created according to the law, with its principal place of business or office in Philadelphia, in the state of Pennsylvania, as he is informed. (3) That defendant has property in this state, at Govans, consisting of a box freight car. (4) That plaintiff is a resident of this state, to wit, of the town of Olar, in Bamberg county, aforesaid. (5) That the subject of this action is likewise in this said county of Bamberg." The defendant made a motion to set aside the attachment on the following grounds: "That the said attachment was improvidently and irregularly issued, as appears upon the face of the proceedings had in said action, in that: (1) It is not stated in the affidavit that the plaintiff was the owner of the melons at the time of the shipment thereof. (2) It is not stated in the affidavit what the value of the melons was, or that they were of any value whatsoever. (3) It is not stated in the affidavit that the Pennsylvania Railroad Company was under any contractual obligation to receive and transport promptly and deliver the melons, or even that it is a common carrier. (4) It is stated that the melons were delivered to the Florida Central & Peninsular Railroad Company, but it is not stated that that company had any power or authority to contract for the Pennsylvania Railroad Company, or to bind it by any contract it might make for the transportation of the melons. (5) That the attachment bond is not executed as required by law, the sureties thereon not having justified and the bond probated,--conditions precedent to the legal filing of the same." His honor the circuit judge signed the following order: "After hearing argument and pleadings and matters called to the attention of the court, it is ordered that the motion to set aside the attachment be, and the same is, overruled and refused."

The first exception of the appellant is as follows: "(1) That his honor erred, it is respectfully submitted, in holding that the affidavit stated facts sufficient to show a cause of action in favor of the plaintiff and against the defendant, and to authorize the clerk to issue a warrant of attachment, whereas he should have held that the said affidavit was defective, in (a) that it is not stated in the affidavit that the plaintiff was the owner of the melons at the time of the shipment; (b) that it is not stated in the affidavit what the value of the melons was, or that they were of any value whatsoever; (c) that it is not stated in the affidavit that the Pennsylvania Railroad Company was under any contractual obligation to receive and transport promptly and deliver the said melons, or that even it is a common carrier; (d) that it is not stated in the affidavit that the Florida Central and Peninsular...