Anderson v. Anderson
| Decision Date | 15 December 1941 |
| Docket Number | 15343. |
| Citation | 18 S.E.2d 9,198 S.C. 412 |
| Parties | ANDERSON et al. v. ANDERSON et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Horry County; L. D. Lide Judge.
Proceeding by S.D. Anderson and Gussie Anderson, as executor and executrix of the last will and testament of A. D. Anderson deceased, for probate of the will, opposed by Marsden Anderson and others. The probate court adjudged that the will was void, and an appeal was taken to the court of common pleas. From the judgment of the court of common pleas refusing a motion to dismiss the appeal, Marsden Anderson and others appeal.
Order of Judge Lide follows:
This matter comes before me on a motion in behalf of the heirs at law of A. D. Anderson, deceased, for an order dismissing the appeal herein from the decree of the Judge of Probate for Horry County, dated July 15, 1940, adjudging that the instrument of writing dated October 8, 1935, purporting to be the last will and testament of A. D. Anderson, deceased, is null and void and of no force and effect. The motion is based upon the ground that no service of a copy of the grounds of appeal was made upon the adverse parties, or any of them, as required by Section 230, Code 1932, and hence that the Court of Common Pleas has no jurisdiction to hear any appeal herein. Attached to the notice of motion is a joint affidavit signed by the movants to the effect that no copy of the grounds of appeal has been served upon any of them, and that no notice of appeal or intention to appeal from the Judge of Probate's decree has been served upon any of them.
The motion having been duly marked heard in open court by consent of counsel for the respective parties was argued before me on May 9, 1941, and thereafter counsel for the movants filed a very full brief on the subject involved.
It is quite true that Section 230, Code 1932, does say with reference to appeals to the Circuit Court from the Probate Court that the grounds of appeal shall be filed in the office of the Probate Court "and a copy thereof served on the adverse party, within fifteen days after notice of the decision appealed from." While such service was not made on the heirs at law or any of them personally it was made on their attorneys who had represented them in the proceedings in the Probate Court and who are now representing them in the instant motion before me. Service was accepted by E. S. C Baker, Esquire, as one of the attorneys for these parties, of the notice and grounds of appeal, the following being an exact copy of this acceptance of service:
It will be observed that there was a blank in this acceptance, which was for the signature of E. J. Sherwood, Esquire, the other attorney, but it appearing that he was away at the time a copy of the papers was left at his office, and there is an affidavit to that effect in the record.
The contention of counsel for the movants, which they urge with much earnestness and ability, is that service upon the attorneys is not in compliance with the provisions of Section 230. But it seems to me that after parties have been brought into court and are represented by an attorney or attorneys-at-law, service upon such attorney or attorneys would be deemed in legal effect service upon the adverse parties. One of the significant features of our whole judicial system is that parties litigant may be, and usually are, represented by attorneys learned in the law, and these attorneys by virtue of the very name of their office stand for and in the place of their clients. An attorney is the alter ego of his client, insofar as the case is concerned.
And I think that Section 452, Code of 1932, recognized this principle, and that Section 230 should be construed in connection with it. Section 452 is as follows: "Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney instead of the party."
It is clear, of course, that such a provision is applicable only after the action has been commenced and the parties brought into court. Hence it is properly provided in Section 453 that this and other provisions in that chapter shall not apply to the service of a summons or other process. But I do not think it can be soundly said that a notice of appeal is a process within the meaning of this section. Royal Exchange Assurance v. Bennettsville & C. Railroad Co., 95 S.C. 375, 79 S.E. 104. And Blackstone says that process is "the means of compelling the defendant to appear in court."
Counsel for the movants, however, call attention to the fact that Section 781 relating to appeals from the Circuit Court to the Supreme Court provides for service of the notice of appeal on "the opposite party or his attorney." But the mere fact that this section makes specific reference to service on the attorney does not substantially affect the conclusion above suggested, for legislative acts are sometimes explicit and sometimes implicit.
While not exactly in point, but as tending to throw a side light upon the question before the court, reference may be made to the interesting case of Muldrow v. Jeffords, 144 S.C. 509, 142 S.E. 602, 607. This case involved the question of will or no will, and the attorneys there did the quite unusual thing of...
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