Savannah Grocery Co. v. Rizer

• Decision Date: 01 March 1905
• Citation: 50 S.E. 199,70 S.C. 501
• Parties: SAVANNAH GROCERY CO. v. RIZER.
• Court: South Carolina Supreme Court

50 S.E. 199

70 S.C. 501

SAVANNAH GROCERY CO. v. RIZER.

Supreme Court of South Carolina

March 1, 1905

Appeal from Common Pleas Circuit Court of Colleton County; Dantzler Judge.

Action by the Savannah Grocery Company against T. J. Rizer. From an order dissolving the attachment, plaintiff appeals. Reversed.

C. C Tracy, for appellant. Howell & Gruber, for respondent.

POPE C.J.

The appeal herein involves two questions growing out of the writ of attachment issued by the clerk of the court of common pleas of Colleton county, in this state, in the above-stated action. It seems that the plaintiff is a corporation of the state of Georgia, and the defendant is a resident of the state of Georgia. The cause of the action was an indebtedness of $305.35 contracted by the defendant, while in South Carolina, for goods and merchandise sold to him by the plaintiff corporation. It was claimed by the plaintiff that the defendant was a nonresident of the state on June 1904, but at that time was a resident of Haylow, in the state of Georgia. It was alleged that the defendant owned 290 acres of land situated in Colleton county, of the state of South Carolina. To obtain this attachment, the plaintiff corporation made an oath that the defendant was indebted to the plaintiff in the sum of $305.35, the grounds of which appeared in the sworn complaint annexed; that the defendant T. J. Rizer, is not a resident of the state of South Carolina, but resides at Haylow, in the state of Georgia, but has property in the state of South Carolina, to wit, a tract of land of 290 acres in the county of Colleton; that the debt upon which the action is brought was contracted under the laws of South Carolina, and while the defendant was resident thereof; and that said action has been commenced by the issuance of a regular summons therein. The following complaint was issued, to wit: "The complainant complains and alleges: (1) That it is a corporation duly incorporated under the laws of Georgia, and as such can sue and be sued, plead and be impleaded, in any of the courts of the state of South Carolina. (2) That at the request of the defendant, and at a price agreed upon, which price is set out in bill of particulars hereto attached, and made a part thereof, the plaintiff delivered to said defendant the articles of merchandise in the said bill of particulars attached and above referred to, of the aggregate value of $305.35 . (3) That said defendant received said goods, and there is now due, owing, and unpaid to the plaintiff by him the said sum of $305.35. Whereupon plaintiff demands judgment against said defendant for the sum of $305.35, and costs.

State of Georgia, Chatham County. Sigo Myers, president of the plaintiff above named, being duly sworn, says that the above complaint is true, of his own knowledge. Savannah Grocery Company, Sigo Myers, President.

Sworn to before me this 28th day of June, 1904. [ Seal.] John Hardy Purvis, Notary Public C. C., Ga."

Attached to this complaint is a verified itemized account or bill of particulars, not copied herein, but sworn to before W. T. Walker, notary public of Chatham county, Ga., and seal attached.

There was an undertaking in the sum of $250, in the usual form. The summons was in the usual form, signed by plaintiff's attorney and E. R. McTeer, as clerk of court. The warrant of attachment was in the usual form, signed by E. R. McTeer, as clerk of the court, with his official seal as said clerk. The warrant and return were duly filed, but are not copied herein--the first dated June 29, 1904, and the return dated July 16, 1904. The following affidavit to obtain publication and the following order of publication were duly made, to wit:

"Sigo Myers, president of the plaintiff company, on oath says: (1) That a cause of action exists in favor of the plaintiff against the defendant, the grounds of which appear in the sworn complaint hereto attached. (2) That the defendant is not a resident of the state of South Carolina, but resides at Haylow, in the state of Georgia, as this deponent is informed and believes, but has property in the State, to wit, a tract of land in the county of Colleton, containing about 290 acres. (3) That the cause arose within the said state of South Carolina, as appears by statement of account hereto attached. Savannah Grocery Co., Sigo Myers, President.

Sworn to before me this 28th day of June, 1904. [ Seal.] John Hardy Purvis, Notary Public C. C., Ga."

Order of Publication. The affidavit hereto annexed showing to my satisfaction that the defendant is not a resident of the state of South Carolina, but resides at Haylow, in the state of Georgia, and that a cause of action exists against him in favor of the above-named plaintiff, and that he has property within the state, on motion of C. C. Tracy, plaintiff's attorney, it is ordered that the summons herein, a copy of which is filed herewith, be served by publication of the same in the Colleton News, published at Walterboro, in the said county of Colleton, S. C., once a week for six consecutive weeks, and a copy of the said summons, and the complaint thereto attached, be forthwith deposited in the post office, directed to the said T. J. Rizer, at Haylow, Ga., and the postage paid thereon. E. R. McTeer, Clerk of Court. [ Seal.] June 29, 1904."

Thereafter the following notice to set aside the attachment was served:

"To C. C. Tracy, Esq., Plaintiff's Attorney: Take notice that the undersigned will move before the court of common pleas at the courthouse at Walterboro, S. C., on August 3, 1904, at 10 o'clock a. m., or as soon thereafter as counsel can be heard upon the proceedings herein, for an order vacating the attachment granted herein by the clerk of court, upon the ground that the same was irregularly granted for the reasons: (1) That the affidavit upon which the order for publication of the summons was made did not state that the defendant could not, after due diligence, be found within the state. (2) That neither the affidavit for the service of the summons by publication, nor the affidavit upon which the attachment was issued, stated any cause of action against the defendant. (3) That in both the affidavit for the service of the summons by publication and for the issuance of the attachment, the ground therefor being the alleged nonresidence of the defendant, and such statement being made upon information and belief, the plaintiff failed to state the sources of his information or the grounds of his belief. (4) That it appears that the said attachment was issued without approving the undertaking given by the plaintiff, both the plaintiff and its surety being nonresidents of the state. (5) It appears that the court is without jurisdiction of the parties and

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