Chisolm v. Propeller Tow-Boat Co. of Savannah

• Decision Date: 21 March 1901
• Parties: CHISOLM et al. v. PROPELLER TOWBOAT CO. OF SAVANNAH.
• Court: South Carolina Supreme Court

38 S.E. 156

59 S.C. 549

CHISOLM et al. v. PROPELLER TOWBOAT CO. OF SAVANNAH.

Supreme Court of South Carolina

March 21, 1901

Appeal from common pleas circuit court, Charleston county; Ernest Gary, Judge.

Action by W. B. Chisolm and another against the Propeller Towboat Company of Savannah. From a judgment in favor of plaintiffs defendant appeals. Affirmed.

J. N Nathans and Nathans & Sinkler, for appellant.

Mitchell & Smith, for respondents.

JONES J.

This action was for damages for defendant's alleged negligence in towing plaintiff's barge in Calebogia Sound, resulting in the sinking and loss of the barge and cargo valued at $3,047.66. The suit was commenced on November 22, 1898, by filing summons and complaint, and the issuance of a warrant of attachment against the defendant as a foreign corporation, under which attachment, on December 3, 1898, the sheriff of Beaufort county seized a steam towboat and other property of the defendant. On the 7th day of December, 1898 after an order for publication of the summons, the summons and complaint were personally served on the president of the defendant company. On the 17th of December, 1898, the defendant filed petition and bond for removal of the cause to the United States circuit court for the district of South Carolina on the ground of diverse citizenship, and on the same day an order by the state circuit court was made removing said cause. The defendant filed no notice of appearance or other pleading in the United States circuit court, but gave notice by its counsel that it appeared in the United States court only for the purpose of moving to vacate the attachment issued in said case, and to set aside the summons and complaint herein, and thereupon gave notice of motion in the United States circuit court to vacate the attachment and set aside the summons and complaint, which motion was heard together with a motion on behalf of the plaintiff to remove the cause to the state court. Thereupon on the 22d day of May, 1899, by an order of the United States circuit court, the cause was "forthwith" remanded to the state court. On the same day a certified copy of the said order of remand was filed in the state court, and on the same day an affidavit was filed that the defendant had neither appeared, demurred, nor answered, and the cause was placed on calendar No. 3 for the June term, 1899, of the court of common pleas for Charleston county. Thereafter, on the 7th of June, 1899, the defendant filed in this cause in the state court a certified copy of an order of the United States circuit court dated June 7, 1899, vacating the said order of remand, and requiring the defendant to answer within five days, and that the cause be docketed in the United States circuit court. Subsequently, and in compliance with this order, the defendant filed its answer in the United States Court. This cause being on calendar No. 3 at the March term, 1900, no demurrer, answer, or notice of appearance having been filed or served by defendant plaintiff's counsel, in open court, on April 18, 1900, moved for judgment by default, and, having put in testimony before the jury, a verdict was returned in favor of the plaintiff for $3,070.66, and an order indorsed on the complaint for judgment for that amount. On the next day the defendant's counsel appeared in court, and moved to set...