Stephens v. Ringling
| Citation | 86 S.E. 683,102 S.C. 333 |
| Decision Date | 20 October 1915 |
| Docket Number | 9218. |
| Parties | STEPHENS ET AL. v. RINGLING ET AL. |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Richland County; C.J Ramage, Special Judge.
Action by Ella Stephens and Samuel J. Stephens against John Ringling and others, doing business as Ringling Bros. Judgment for defendants, and plaintiffs appeal. Affirmed.
Lyles & Lyles and D. W. Robinson, all of Columbia, for appellants.
Elliott & Herbert, of Columbia, for respondents.
The appeal involves only one question, and that is whether this action is now moved from the courts of this state, in which it was begun, to the courts of the United States. Out of that other issues arise. The argument on both sides is full and strong, and it deserves to be expended upon a more fruitful subject than jurisdiction. The circuit court of this state and the District Court of the United States have concluded that the action is now in the latter court. Confessedly the action, properly begun in the state court was removable to the United States court for diversity of citizenship.
The primary issue is, Did the defendants proceed in due time to effect the removal? These are the facts: The defendants constitute a circus, and were operating at the time in question in the city of Columbia. A summons and complaint herein for the recovery of money were issued; and concurrently therewith there was issued the provisional remedy of attachment upon the ground of nonresidence, which last included the affidavit, the undertaking, and the warrant. These papers, the summons, the complaint, the affidavit, and the undertaking were filed with the clerk, and he then issued his warrant of attachment on the same day which was the 8th of October. On the next day the sheriff, with the intent to serve, delivered copies of all the above papers to C. N. Thompson, general manager, agent, and claim adjuster for the defendants, and also to a "ticket seller" of the defendants. But the appellants concede that the act was inoperative to effect personal service of the processes on the defendants. On the same 9th of October Messrs. Elliott & Herbert, defendants' attorneys, procured the clerk of court to accept a bond for $25,000 in lieu of the warrant of attachment. On the 13th of October the plaintiff proceeded to procure from the clerk of court an order for publication of the summons, as for the service of a nonresident not to be found in the jurisdiction, the order was made the same day, and publication was had, beginning October 14th and ending November 18th. On November 30th, Messrs. Elliott & Herbert, defendants' attorneys, notified the plaintiffs' attorneys that they would file a petition and bond for removal of the action to the United States court. And on December 3d the petition and bond were so filed.
The suggestion of the plaintiff is that the defendants voluntarily appeared on October 9th, when they gave an undertaking in lieu of the property; that the Code of Procedure required of them to answer or to plead within 20 days thereafter, to wit, or on before October 29th; that by the federal statute their petition and bond for removal must have been filed within the same period; and that they were confessedly not then filed, but only on December 3d. The suggestion of the defendant is that they were not in court on October 9th, and were not in court until November 18th, the time when the publication was ended; and they confessedly filed the petition and bond within 20 days after that day. So the issue is remotely, when ought the defendant to have answered or pleaded? or, proximately and exactly, when were the defendants within the court and bound to plead?
The appellants' counsel said at the bar that their intention at the outstart was to serve by publication; that the doing of that became and was useless, for the defendants had voluntarily appeared on October 9th, and service by publication therefor became unnecessary. The respondents' counsel suggest that the act of publication estops the plaintiff from now insisting that the defendants submitted themselves to jurisdiction when they had the attachment discharged by the execution of a bond. That makes the second issue of law to be hereafter considered.
It is true the final and controlling designation of the forum lies with the federal Supreme Court. But the case, so far as the first issue is concerned, is controlled by the statute law of this state set down in the Code of Procedure; and the obligation is on us to construe and to follow it. The Federal right is mounted on it. The circumstances that at the wind-up the Supreme Court of the United States may conclude with the District Court is a matter for the consideration of the plaintiffs alone. If in our judgment the cause is in the courts of this state and the Circuit Court has held otherwise, then the plaintiffs have the right to appeal here. The service by publication, so far as it reflects the plaintiffs' attorneys' first view of the law, is irrelevant; granting that plaintiffs' attorneys thought, when they advertised, that the defendant had not then appeared, that view of the law which they entertained cannot affect the question whether the defendant had in law appeared. Their conduct is only relevant when the second issue shall be considered, but it is relevant then. The circuit court only held that by the act of publication the plaintiffs were cut off from now saying the defendants had appeared on October 9th. The exceptions make that an issue, and make the further issue that the defendants appeared when they gave the undertaking to stand in lieu of the attachment. We have considered the issue made by the respondents that the order is not appealable.
1. It is fundamental that a defendant is not bound by the procedure and judgments of a court and the rules of law thereabout, unless he is actually or in contemplation of law before the court, or, to use the technical expression, unless the court has secured jurisdiction of his person. There is now no pretense that the defendants had been served with a summons on October 9th, for that is the point of reckoning. The Code of Procedure prescribes how a defendant shall be brought into court by the service of a summons. Section 146. The same instrument prescribes that from that time, in a civil action, the court is deemed to have acquired jurisdiction. Section 189. The same instrument prescribes another method by which a court may get jurisdiction of the person, to wit, by the defendants' voluntary appearance. Section 189.
If the sheriff should have the summons in hand to deliver to the defendant to harken him into court, but before he find the defendant, that person should come to the threshold of the court and say: "I have heard that the sheriff is looking for me, I came of my own motion into the court"--then that would be a spectacular, voluntary appearance. So, also, an answer to the merits would be a formal appearance. The case does not show that answer has ever been made.
Any action by the defendant which really amounts to an intent to be in court is also a voluntary appearance. And for the very reason that a defendant may choose to come into court with trumpets, or quietly by the back door, the statute has not declared what act or acts shall constitute "appearance." It may be by formal writing, or it may be by informal parol action. The act of appearance is defined to be "a coming into court," "the first act of a defendant in court," "a submission to the jurisdiction of the court." Black, Law Dic. 77; 2 R. C. L. 322; 3 Cyc. 502. The instant cause is only confused because of the twofold procedure; one directly by summons against the person of the defendants in personam, the other collateral by warrant of attachment against the property of the defendants, called in rem.
Before the enactment of the Code of Procedure, and by the statutes then of force, the writ of attachment was used, in addition to regular process, to secure jurisdiction of the person of a nonresident defendant. And if a nonresident defendant, whose property had been attached, should give a bail bond and retake possession of the property, that act was held to be equivalent to appearance, and the attachment became functus officio. Young v. Gray, Harper, 40; Shooter v. McDuffie, 5 Rich. 63; Swann v. Lee, 15 Rich. 164.
The case is now governed by the Code of Procedure. That statute has somewhat modified the procedure aforementioned, yet in the operation and effect of the issuance of a writ of attachment, and in the execution of the undertaking by a defendant to secure a return of the property to him, the Code rule preserves some of the features of the old statute. The Code rules, which have reference chiefly to the summons (but also to attachment), the service of the summons, and the appearance are those already cited; and sections 295 and 296 have reference chiefly to the procedure by attachment; but the two are expressly correlated, so that each subject, summons, and attachment is referred to in both subjects treated by the Code.
The procedure by attachment is permissible in six specifications; and they all refer to the absence or the concealment of the defendant, or the concealment or the disposal of his property. Section 279. The procedure is only allowable "when the summons is issued," and the service of the summons, personally or by publication, shall be effected within 30 days after the attachment has been effected. The expressed object of attachment is "as a security for the satisfaction of such judgment as the plaintiff may recover." Id.
The Code does not require that the writ of attachment, or the affidavits on which the same was granted, shall be served , except "when real estate is...
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