Baker v. Irvine

• Decision Date: 07 August 1900
• Parties: BAKER et al. v. IRVINE (three cases).
• Court: South Carolina Supreme Court

36 S.E. 742

58 S.C. 436

BAKER et al. v. IRVINE (three cases).

Supreme Court of South Carolina

August 7, 1900

Appeal from common pleas circuit court of Greenville county; R. C Watts, Judge.

Three actions,--the first by J. A. Baker and W. C. Baker, the second by J. A. Baker, the third by W. C. Baker,--all against W. H. Irvine. From judgments of a magistrate for plaintiffs defendant appealed to the circuit court, which granted plaintiffs' motion to dismiss said appeal, and refused defendant's motion to reverse the magistrate's judgment on the ground that he had no jurisdiction. Defendant appeals. Reversed.

Carey & McCollough and Shuman & Mooney, for appellant.

Blythe & Blythe, for respondents.

McIVER C.J.

These three cases were heard and will be considered together. In each case the defendant took two appeals, both of which may and, as we think, should, be considered together, as the second appeal depends largely upon the effect of the order from which the first appeal was taken. Each of the cases was tried by a magistrate, who rendered judgment in each case in favor of the plaintiff and against the defendant, who undertook to appeal therefrom to the circuit court, and the sole question raised by the first appeal is whether the notice of appeal in each of the three cases was given in time. In discussing this question we shall, for convenience speak as if they were but a single case, though our language must be regarded as applying to each of the cases. It seems that the judgment of the magistrate was rendered on the 7th day of December, 1899, and the notice of appeal accompanying the grounds of appeal has upon it the following indorsement: "We hereby accept service of the within notice and grounds of appeal, as of each case herein, this 12th day of December, 1899. Blythe & Blythe, Plaintiffs' Attorneys. G. W. Nichols, Magistrate." On the 23d of March, 1900, plaintiffs' attorneys gave notice to the attorneys for defendant that, upon the call of the case for trial at the next term of the court of common pleas, they would move to dismiss the appeal upon the following grounds: "Because no notice of appeal in either of said cases was ever personally served upon G. W. Nichols, Esq., the magistrate who tried said cases and rendered judgment therein. This court has, therefore, no jurisdiction to hear said appeals, or either of them." The attorneys for defendants were also notified that upon the hearing of said motion they would use the affidavits of G. W. Nichols, Esq., the said magistrate, and of E. M. Blythe, Esq., copies of which were served with the notice, as well as the indorsement of acceptance of service above set out, purporting to have been made by G. W. Nichols, Esq., magistrate. The affidavits thus referred to are set out in the "case," and that of the magistrate contains the following language: "No notice and grounds of appeal were ever personally served upon me, but on the 12th of December, 1899, on the last day allowed for the service of said notice and grounds of appeal, I was called to the telephone at Athens, S. C., by some one at Greenville, S. C., whose voice I identified as that of J. A. McCollough, Esq., one of the defendant's attorneys, who asked me if I would authorize Miss Lola Turner, a stenographer in his office, to accept service for me of the notice and grounds of appeal. I replied I would do so if there was nothing wrong about it. Mr. McCollough replied that he would be responsible for that. I was then spoken to over the telephone by some one with a feminine voice, whom I believe to have been Miss Turner; and I authorized her, over the telephone, to accept service for me of the notice, and grounds of appeal. No papers of any kind were served upon or delivered to me by defendant or his attorneys until the 13th day of December, 1899, the day after the time for appealing had expired, when I received through the mail at Athens, S. C., a package containing the notice and grounds of appeal." The other affidavits used at the hearing of the motion to dismiss the appeal are set out in the "case," but need not be stated here, as they are simply confirmatory of the statements made by the magistrate, Nichols, in his affidavit above copied, and state the further facts that Miss Turner, in pursuance of the authority conferred upon her by the telephone message from the magistrate, did sign the name of G. W. Nichols, magistrate, to the acceptance of service of the notice and grounds of appeal indorsed thereon, and that Messrs. Blythe & Blythe, attorneys for plaintiffs, also signed said acceptance, all on the 12th of December, 1899, within five days after the judgments appealed from were rendered. At the call of the case for hearing this motion to dismiss the appeal was heard by his honor, Judge Watts, who passed an order that the appeal be dismissed, basing his conclusion upon the ground that, "from the facts stated in the aforesaid affidavits, I conclude, as a matter of law, that said facts do not constitute personal service on the magistrate, as demanded by section 360 of the Code of Civil Procedure." From this order defendant appeals, upon the grounds set out in the record, which need not be stated here, as they practically raise but two questions: (1) Whether, under the facts stated, there was a sufficient and substantial compliance with the law requiring personal service of the magistrate with the notice and grounds of appeal within five days after the judgment was rendered. (2) If not, whether the magistrate, being the only person who could object to the want of service, has not waived such objection by making his return within the time prescribed, in which no objection was made to any want of personal service of the notice and grounds of appeal, as appears by his return, made January 3, 1900, as set out in the "case."

As to the...