Bird v. Sullivan

• Decision Date: 27 June 1900
• Citation: 36 S.E. 494,58 S.C. 50
• Parties: BIRD v. SULLIVAN.
• Court: South Carolina Supreme Court

36 S.E. 494

58 S.C. 50

BIRD v. SULLIVAN.

Supreme Court of South Carolina

June 27, 1900

Appeal from common pleas circuit court of Cherokee county; O. W Buchanan, Judge.

Action by D. R. Bird against W. H. Sullivan. Judgment of a magistrate for plaintiff was reversed by the circuit court and plaintiff appeals. Reversed.

N. W Hardin, for appellant.

J. F. & J. R. Hart, for respondent.

GARY A. J.

The following statement of facts appears in record, to wit "This was an action commenced by D. R Bird, plaintiff, against W. H. Sullivan, defendant, on the 17th day of December, 1898, in the court of A. M. Bridges, magistrate, on money demand of $48.86, in the county of Cherokee. On the day the summons was issued, an attachment was issued and served on the South Carolina & Georgia Extension Railroad Company, within county and state, the plaintiff alleging in his attachment affidavit that the defendant was a nonresident of the state, and that the South Carolina & Georgia Extension Railroad Company had property in the state belonging to the absent defendant. On the 6th day of January, 1899, the defendant, Sullivan, was served with a copy of the warrant of attachment and the summons in the county and state, in which the day set for trial of the action was the 28th of January, 1899. On the 21st of January, 1899, the defendant gave notice of a motion to vacate the attachment on the following grounds: (1) Because it appears from affidavit of the plaintiff that the defendant is a resident of the state of South Carolina, and no grounds are stated to sustain an attachment. (2) Because, if not a resident of this state and of Cherokee county, the magistrate's court in Cherokee county has no jurisdiction over the defendant or the subject-matter of the action." The magistrate found as a fact that the defendant was a nonresident of this state, and refused the motion on the 25th of January, 1899. The record contains the following minutes of the trial before the magistrate on the 28th of January, 1899: "This cause came on for trial before me on the 28th day of January, 1899. Defendant appeared by his attorneys, Messrs. Hart & Hart, and denies each and every allegation of plaintiff's complaint. Plaintiff admitted the defendant Will Sullivan lives in Marion, N.C. Defendant's attorneys asked that the action be dismissed because the magistrate, under the constitution, has no jurisdiction, plaintiff having proved that def...