Breon v. Miller Lumber Co.

• Decision Date: 19 July 1909
• Citation: 65 S.E. 214,83 S.C. 221
• Parties: BREON v. MILLER LUMBER CO. et al.
• Court: South Carolina Supreme Court

65 S.E. 214

83 S.C. 221

BREON v. MILLER LUMBER CO. et al.

Supreme Court of South Carolina

July 19, 1909

Appeal from Common Pleas Circuit Court of Barnwell County; John S Wilson, Judge.

Action by George B. Breon against the Miller Lumber Company and others. From an order refusing motions to set aside service of summons, defendants appeal. Reversed in part, and affirmed in part.

J. F Carter and W. H. Townsend, for appellants. J. O. Patterson & Son and Bates & Simms, for respondent.

GARY A. J.

The following statement appears in the record: "This is an appeal from an order of the Honorable John S. Wilson, circuit judge, presiding in the Second circuit in the above-entitled action, made at chambers in Bamberg, S. C., on the 12th day of November, 1908, refusing two motions made separately by the defendants, the Miller Lumber Company and Henry I Wilson, to set aside the service of the summons in the above entitled action, which had been made upon each of them, respectively, as follows: On the Miller Lumber Company on or about September 29, 1908, by service, after order for service by publication, on R. C. Gourley, its secretary, without the state of South Carolina, and Punxsutawney, in the state of Pennsylvania, and on the 20th day of October, 1908, on Adam Miller, its president, in Barnwell, S. C., and on Henry I. Wilson, a nonresident of the state of South Carolina, on or about the 29th day of September, 1908, in Big Run, Jefferson county, Pa., and on the 20th day of October, 1908, in Barnwell, S.C. Each of said defendants having appeared separately, specially, and only for the purposes of their respective motions. The two motions were for the convenience of counsel heard together." The complaint upon which the summons was issued seeks the recovery of damages against the defendants, for the sum of $479,259.82.

The first question that will be considered is whether the service of summons, made upon the defendant Henry I. Wilson, without the state of South Carolina, and within the state of Pennsylvania, in September, 1908, after and pursuant to the order for service by publication, was either void or voidable. This question is concluded by the case of Little v. Christie, 69 S.C. 57, 48 S.E. 89, in which the court ruled that proceedings for the service of summons by publication on a nonresident, before attachment of his property, are null and void.

The next question for consideration is whether the service of summons made on Henry I. Wilson, a nonresident of this state and only temporarily within this state for the sole purpose of attending, as a party defendant and a witness, a reference being held at Barnwell, S. C., on the 20th of October, 1908, under an order of the court, in another action pending therein, for the foreclosure of a mortgage on specific property, situate within this state, while in attendance on such reference, should have been vacated and set aside. Section 847 of the Civil Code of 1902 is as follows: "No person shall be arrested, while actually engaged in or attending military or militia duty, or going to, or returning from the same, nor while attending, going to, or returning from any court, as party or witness, or by order of the court, except for treason, felony, or breach of the peace; but in such case, process may be served, without actual arrest of body or goods." In the case of Cooper v. Wyman, 122 N.C. 786, 29 S.E. 947, 65 Am. St. Rep. 731, it was held that a nonresident, who comes into the state for the sole purpose of attending a litigation, either as suitor or witness, is exempt from service of civil process during his coming, his stay, and a reasonable time for returning. The court in that case used the following language: "As stated in many of the cases, this settled rule is based upon high considerations of public policy, not upon statutory law, since it is the public interest that suitors and witnesses from other states, who cannot be compelled to attend our courts, may not be deterred from voluntarily appearing by fear of being served with process in other actions; their presence, if obtainable, being calculated to enable the courts to more thoroughly educe the truth of the matters in litigation. Baldwin v. Emerson, 16 R.I. 304, 15 A. 83, 27 Am. St. Rep. 741. In some few of the earlier cases it was questioned whether the privilege was not restricted to witnesses; but all the later and better considered cases embrace parties as well as witnesses, more especially since the change, which enables part...