McDonald v. Floyd

• Decision Date: 26 February 1912
• Citation: 73 S.E. 769,91 S.C. 118
• Parties: McDONALD v. FLOYD et al. [D1]
• Court: South Carolina Supreme Court

73 S.E. 769

91 S.C. 118

McDONALD v. FLOYD et al. ^[D1]

Supreme Court of South Carolina

February 26, 1912

Appeal from Common Pleas Circuit Court of Richland County; Robt. Aldrich, Judge.

"To be officially reported."

Action by T. C. McDonald against W. A. Floyd and another. From an order denying a motion made in the original cause to set aside a judgment, defendant named appeals. Affirmed.

Nelson Nelson & Gettys, for appellant. Frank G. Tompkins, for respondent.

GARY C.J.

The following statement appears in the record: "This was a motion in the original cause, on behalf of the defendant W A. Floyd, to stay execution and vacate and set aside a judgment originally rendered against J. W. and W. A. Floyd on the 1st day of April, 1903, by Robert Moorman, Esq. magistrate for Richland county, a transcript of which was filed, and judgment entered thereon, in the court of common pleas for Richland county, and was heard in open court by his honor, Robert Aldrich, presiding judge, at the summer term, 1911, of the court of common pleas." The motion was refused, whereupon the defendant appealed to this court, and, in the language of the appellant's attorneys, the sole question presented by the exceptions is whether there was error, on the part of his honor, the presiding judge, in refusing the motion on the ground that the judgment was void, because the magistrate was without jurisdiction; the summons being fatally defective, in that it was issued and served on November 26, 1902, and required the defendant to appear and answer on December 16, 1902, less than 20 days after service.

Section 88, subd. 16, of the Code, provides that, "when twenty-five or more dollars is demanded, the complaint shall be served on the defendant not less than twenty days *** before the day therein fixed for trial." Prior to the decision in the case of Jenkins v. Railway, 84 S.C 343, 66 S.E. 409, the question of jurisdiction as to the person and the subject-matter of the action was in much confusion, arising from the fact that there were numerous decisions which could not be reconciled, as will be seen by reference to the opinion of the court and the dissenting opinion in said case. In order to settle the law, the circuit judges were called to the assistance of the Supreme Court, and when they sat en banc it was held that "the provision that an action for the recovery of a penalty must be tried in the county where the cause or...