Am. Agricultural Chem. Co v. Smith, 13878.

• Decision Date: 23 June 1934
• Docket Number: No. 13878.,13878.
• Court: South Carolina Supreme Court
• Parties: AMERICAN AGRICULTURAL CHEMICAL CO. v. SMITH.

175 S.E. 275

AMERICAN AGRICULTURAL CHEMICAL CO.

v.SMITH.

No. 13878.

Supreme Court of South Carolina.

June 23, 1934.

Appeal from Common Pleas Circuit Court of Richland County; Philip H. Stoll, Judge.

Action by the American Agricultural Chemical Company against Alfred G. Smith. Prom an order refusing a motion to set aside the service of the summons and complaint upon defendant, he appeals.

Order affirmed.

The order of Judge Stoll is as follows: This action was instituted on notes in the court of common pleas for Richland county, S. C. The defendant served notice of a motion returnable before me at Kingstree, S. C, to set aside the service of the summons and complaint on the ground that the court of common pleas for Richland county had no jurisdiction over the defendant, who, it is alleged, is a citizen and resident of Lexington county and is not a resident of Richland county.

Counsel submitted to me affidavits of the defendant and affidavit of counsel for the plaintiff.

It appears that Alfred G. Smith, the defendant, owns a peach farm in Lexington county; that he votes there and considers Lexington county his permanent residence; his wife is the owner of a house and lot in Richland county, where the defendant is now actually residing; at the present time he isemployed by the United States government in a soil survey of the state of South Carolina, and has his headquarters in Columbia, Richland county.

Considering these facts, however, I have reached the conclusion that his residence, within the meaning of the venue statute (Code 1932, § 422), is still Lexington comity, and that is the proper county in which he should be sued.

The defendant also makes the point the action should be dismissed by reason of the fact that service was effected by leaving a copy of the summons and complaint with the wife of Alfred G. Smith, at the home in Columbia, S. C, and that by reason of the fact that was not the permanent residence of the defendant service is ineffective. I cannot agree with this conclusion. It seems to me the defendant, Alfred G. Smith, really had two residences, and, while I am holding the proper venue is Lexington county, it appears to the court the service is valid.

Under these circumstances this court has jurisdiction to transfer the cause to Lexington county. Ex parte Jones, 160 S. C. 63, 158 S. E. 134, 77 A. L. R. 235; Mahon v. Burkett, 160 S. C. 48, 158 S. E. 141. It is therefore ordered and adjudged (1) that the above-entitled action be, and hereby is, transferred to the court of common pleas for Lexington county, S. C.; (2) that the defendant is hereby given ten days from the date of this order in which to plead to the complaint.

Alva C. DePass, of Columbia, for appellant.

Robinson & Robinson, of Columbia, for respondent.

CARTER, Justice.

This action, by American Agricultural Chemical Company, as plaintiff, against the defendant, Alfred G. Smith, was commenced in the court of common pleas for Richland county November, 1933, for the purpose of procuring judgment against the...