Fitzgerald v. J.I. Case Threshing Mach. Co.

• Citation: 77 S.E. 739,94 S.C. 54
• Parties: FITZGERALD v. J. I. CASE THRESHING MACH. CO.
• Decision Date: 17 March 1913
• Court: United States State Supreme Court of South Carolina

77 S.E. 739

94 S.C. 54

FITZGERALD v. J. I. CASE THRESHING MACH. CO.

Supreme Court of South Carolina

March 17, 1913

Appeal from Common Pleas Circuit Court of Charleston County; George E. Prince, Judge.

"To be officially reported."

Action by Kate Fitzgerald, as administratrix of John Fitzgerald deceased, against the J. I. Case Threshing Machine Company. From an order overruling a motion to set aside the service of a summons, the defendant appeals. Affirmed.

See also, 77 S.E. 741 mordecai & Gadsden, Rutledge & Hagood, and W. A. Holman, all of Charleston, for appellant. Logan & Grace, of Charleston for respondent.

GARY C.J.

This is an appeal from an order of his honor, Judge Prince, refusing a motion to set aside the service of the summons, in an action by the plaintiff against the defendant, for damages sustained by her, on account of the death of her husband, alleged to have been caused by a collision with an automobile under the control of defendant's agents at Charleston, S. C., on the ground that R. D. Reid, upon whom the summons was served, was not at the time of the service within the state as the agent of the defendant; but, on the contrary, was in attendance upon the court of general sessions for the county of Charleston under and by virtue of a recognizance requiring him to appear before said court to answer to a bill of indictment to be preferred against him for murder.

The facts are thus stated in the order of his honor, Judge Prince: "This matter comes before me on a motion to set aside service of the summons on the defendant J. I. Case Threshing Machine Company. It appears from the record that the summons was served on the 5th day of June, 1912; that after the service of the summons and complaint a notice was served on plaintiff's attorneys by the attorneys for the defendant that a motion would be made before the honorable R Withers Memminger, judge of the Ninth circuit, on the 26th day of June, 1912, for an order setting aside the service of the summons on the defendant, on the ground that the person upon whom the summons and the complaint were served was not at that time the agent or representative of the defendant company. That thereafter defendant's counsel requested that said papers giving notice of said motion be returned to them, and that this was done. That thereafter a notice dated June 22, 1912, was served upon plaintiff's attorneys by defendant's attorneys, giving notice that on the 26th of June, 1912, the defendant company would file in the office of the clerk of court of common pleas for Charleston county a petition and bond for the removal of said case into the United States District Court of South Carolina. That thereafter said petition and bond were filed in the office of the clerk of court of common pleas for Charleston county for removal of said cause into the United States District Court, but that said petition and bond were filed beyond the time allowed by law for said purpose. That thereafter plaintiff's attorneys had said case placed on the default docket, more than 20 days having elapsed since the service of said summons and complaint, and no answer or demurrer having been filed. That thereafter, on the 29th day of June, 1912, counsel for defendant served upon plaintiff's attorneys a notice that on the 18th day of July, 1912, they would move before his honor, Judge R. Withers Memminger, at his chambers at Charleston, for an order relieving the defendant of default in this case, and for an order allowing the defendant to answer, demur, or plead, or make such motion in said cause as may be advised by its counsel. That thereafter his honor, Judge Memminger, filed an order allowing said defendant to answer upon terms. That thereafter, on the 29th day of August, 1912, defendant's attorneys served upon attorneys for plaintiff a notice of appeal from said order of Judge Memminger. That thereafter, on the 21st day of September,...