Bissonette v. Joseph

• Decision Date: 25 July 1933
• Docket Number: 13677.
• Parties: BISSONETTE v. JOSEPH.
• Court: South Carolina Supreme Court

170 S.E. 467

170 S.C. 407

BISSONETTE v. JOSEPH.

No. 13677.

Supreme Court of South Carolina

July 25, 1933

Appeal from Common Pleas Circuit Court of Charleston County; Wm. H Grimball, Judge.

Action by E. A. Bissonette against Charles M. Joseph. Judgment in favor of plaintiff. From an order overruling a motion to open the judgment, and from an order overruling a motion to strike references in plaintiff's counter affidavit to indemnity insurance carried by defendant, he appeals.

Affirmed.

Waring & Brockinton, of Charleston, for appellant.

B Allston Moore, of Charleston, for respondent.

BONHAM Justice.

This litigation grew out of a collision between plaintiff's passenger automobile bus and defendant's sedan automobile, which occurred February 21, 1932. The plaintiff who is respondent here, began his action March 12, 1932, by serving the summons, without complaint, on defendant. The summons was filed in the office of the clerk of court March 16, 1932. No answer, demurrer, or notice of appearance was served on plaintiff's attorney within twenty days after the service of the summons on defendant. April 23 plaintiff's attorney filed the complaint in the clerk's office, and April 25, he filed his affidavit of default. April 28, 1932, he called the case for trial, presented his testimony to the court and a jury, and had a verdict for $600.

April 30, 1932, defendant's counsel served on plaintiff's counsel notice of appearance and demand for a copy of the complaint, and stated therein that defendant had not learned of the filing of the complaint in the clerk's office until April 29, 1932. Judgment was entered on the verdict May 6, 1932. May 11, following, defendant's counsel served on plaintiff's counsel notice, with grounds attached, of a motion before Hon. W. H. Grimball, resident judge of the circuit, to open the judgment thus obtained, set aside the verdict, and cancel the judgment of record in the clerk's office. In due time Judge Grimball filed his order overruling the motion. By permission of the court, plaintiff's attorney was allowed to file affidavits counter to those offered by defendant in support of this motion. In one of plaintiff's counter affidavits reference was made to the fact that defendant had indemnity insurance on his automobile. To this statement defendant objected and moved that it be struck out, which motion was denied in a short order. From both orders defendant appeals. The appeal from the order overruling the motion to open the judgment and cancel it of record is based upon exceptions which embody substantially the grounds upon which the motion was predicated. Appellant's counsel in their brief state: "The main appeal herein covers two points, namely: (1) Did the plaintiff by virtue of the facts in this case have a right under the statute and rules of procedure to obtain a judgment by default against the defendant? (2) Should the defendant be relieved of the judgment on the ground of excusable neglect?" We shall adopt that method of considering the appeal.

Appellant's contention is that under the provisions of section 430, Code of Civil Procedure 1932, it is not mandatory upon a defendant to serve on plaintiff, or his attorney, notice of appearance, before the complaint is filed. Judge Grimball held that such notice must be served within twenty days after the service of the summons on the defendant.

Under our practice, as prescribed by the Code of Procedure, the function of the summons is to bring the defendant within the jurisdiction of the court. The action is begun when the summons is served.

" Civil actions in the Courts of record of this State shall be commenced by service of a summons." Code Civ. Proc. 1932, § 427; Lee v. Storfer, 159 S.C. 70, 156 S.E. 177.

"The purpose of the summons is to acquire jurisdiction of the person of the defendant and to give him notice of the action and an opportunity to appear and defend." State v. Sanders, 118 S.C. 498, 110 S.E. 808, 810. (Italics added.)

Section 428 provides, inter alia, that the defendant shall serve his answer to the complaint within twenty days after the service of the summons.

Section 429 requires that the summons shall contain a notice that if the defendant shall fail to answer the complaint within twenty days after the service of the summons the plaintiff will apply to the court for the relief demanded in the complaint.

It will be observed that sections 428 and 429 presuppose that the complaint will be served with the summons, yet they provide that the defendant shall serve his answer not twenty days after the service of the complaint, but twenty days after the service of the summons. Section 430 of the Code is in these words:

" Complaint Need Not Be Served with Summons.--A copy of the complaint need not be served with the summons. In such case, the summons must state where the complaint is or will be filed, and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and, in person or by attorney, demands, and in writing, a copy of the complaint, specifying the place within the State where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly; and, after such service, the defendant has twenty days to answer."

It would seem that the language of this section is clear and unambiguous, but when it is read in connection with sections 428 and 429 there can be no doubt that the intent of section 430 is that defendant must give notice of appearance and make demand for copy of the complaint within twenty days after the service of the summons on him.

There is authority for this interpretation. Mr. Justice Gage, delivering the unanimous opinion of this court in the case of Baker-Jennings Hdw. Co. v. Culp, 105 S.C. 418, 90 S.E. 26, said this:

"The plaintiff in each of these cases recovered judgment by default against the defendant. The defendant thereafter moved to open the judgments entered thereon and for leave to answer. The motions were granted, and the plaintiffs have appealed.

"It is plain the motions ought to have been refused. A summons was served on the defendant in each case, with notice therein that a complaint would be filed in the clerk's office. The defendant and his counsel say, by affidavit, that they inquired at the clerk's office, and they found no complaint filed, and that they did not know any further action had been taken by the plaintiff until execution had been issued. The action was commenced when the summons was served, and it then became the defendant's duty, if he desired to contest the action, to give the plaintiff notice of appearance and demand a copy of the complaint. That is the plain direction of the Code of Procedure. The defendant did not do that, and he must abide the consequences. The orders are reversed."

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