Able v. Hall

• Decision Date: 29 April 1915
• Docket Number: 9082.
• Citation: 85 S.E. 165,101 S.C. 24
• Parties: ABLE v. HALL.
• Court: South Carolina Supreme Court

85 S.E. 165

101 S.C. 24

ABLE v. HALL.

No. 9082.

Supreme Court of South Carolina

April 29, 1915

Appeal from Common Pleas Circuit Court of Aiken County; H. F. Rice Judge.

Action by R. G. Able against I. S. Hall. Judgment for plaintiff, and defendant appeals. Reversed.

J. B Salley, of Aiken, for appellant.

E. L Asbill, of Leesville, and Claude E. Sawyer, of Aiken, for respondent.

GAGE J.

Action before a magistrate's court to recover $62.40, the purchase price of two steers. Judgment for the plaintiff. Appeal here by the defendant.

There is only one exception by defendant, and it makes one issue. The issue is that the magistrate had no jurisdiction to try the case, for the reason the defendant was allowed by the summons only 15 days in which to appear, when by law he was entitled to 20 days.

It is true, if a defendant be simply summoned to answer in 15 days when the statute allows him 20 days, and the defendant appears and challenges the jurisdiction on that ground, and does no act to waive his right to 20 days' notice, and the magistrate nevertheless gives judgment against him, then the judgment is voidable for lack of jurisdiction.

In the case at bar the defendant appeared and objected to the jurisdiction of his person; but the court overruled the objection, the defendant withdrew, and judgment went against him. The case, therefore, is not like those of McDonald v. Floyd, 91 S.C. 119, 73 S.E. 769, and Rogers v. Townes, 97 S.C. 56, 81 S.E. 278.

It is true the magistrate may, by the words of the statute, and for good reason, make the process returnable in such time as the justice of the case may require. That is to say, in the case at bar the magistrate may have summoned the defendant to answer in 15 days instead of 20 days. But therefor the magistrate must have had some proof of the advisability of such procedure. Moore v. Railroad, 76 S.C. 335, 56 S.E. 971. We in fer from the "case," for the plaintiff has furnished no points and authorities, that the plaintiff relies therefor upon an affidavit of the plaintiff made contemporaneously with the summons and served therewith. It is manifest from its words that the affidavit was made, not to procure a shortening of the time to appear, but to procure the issuance of a warrant of attachment against the steers, to stand security for the satisfaction of any judgment which might be recovered. For besides the language of the affidavit, on the same day of its execution, an undertaking was made, and a warrant of attachment was issued.

The summons to appear in 15 days was therefore illegal, and was not done pursuant to the proviso of subdivision 16 of section 97 of the Code of Procedure.

Nor is the defect cured by the testimony of the witnesses at the trial, nor by the report of the magistrate. If the magistrate did not in fact follow the direction of the above-cited proviso, then his report that he did follow it availeth nothing.

The summons was issued and served on January 18, 1912. The appearance day was February 1, 1912. On that day defendant appeared, and "without submitting himself to the jurisdiction of the court, and for the sole purpose of objecting to the jurisdiction of the court, and moved the court to dismiss the above-entitled action against him, and to release and set aside the warrant of attachment issued herein, upon the following grounds: (1) Because the summons and complaint served on the defendant herein are absolutely null and void, because it required the defendant to answer the complaint within 15 days...