D. W. Alderman & Sons Co. v. Kirven

• Decision Date: 11 December 1946
• Docket Number: 15898.
• Citation: 40 S.E.2d 791,209 S.C. 446
• Parties: D. W. ALDERMAN & SONS CO. v. KIRVEN.
• Court: South Carolina Supreme Court

40 S.E.2d 791

209 S.C. 446

D. W. ALDERMAN & SONS CO. v. KIRVEN.

No. 15898.

Supreme Court of South Carolina

December 11, 1946

James Hugh McFaddin, of Manning, for appellant.

John G. Dinkins, of Manning, for respondent.

FISHBURNE, Justice.

This appeal presents several questions, all arising out of the refusal of the lower court to vacate the order for the arrest of appellant which was obtained under subsection 6 of section 500 of the Code, upon a verified complaint and two supporting affidavits.

The appellant obtained his discharge from the arrest upon giving bond as provided in Section 507, after which he served his answer and counterclaim, and thereafter moved to vacate the order.

In opposing appellant's motion to set aside the order, the plaintiff contended that the defendant had waived all questions of irregularity or nonconformity with the statutes upon which the order of arrest was based, upon the ground that any objection to it on the ground of defect deficiency or irregularity must be taken advantage of by the defendant in the first instance, and before he has given bail or entered appearance.

In support of this sustaining ground, the plaintiff directs our attention to several cases in this jurisdiction where it is stated that proceedings for the arrest of a debtor in a civil case are closely analogous to attachment proceedings and should be strictly construed. Four County Agr. Credit Corp. v. Matthews, 199 S.C. 71, 18 S.E.2d 602; and analogous to decisions where it has been held that a defendant by giving bond and pleading to the merits in attachment proceedings thereby waives the right to move to vacate the attachment except in certain instances not relevant here. DuRant v. Brown Motor Co., 147 S.C 88, 144 S.E. 705; Bonnette v. Clow, 118 S.C. 376 110 S.E. 794.

But there is an important distinction between attachment proceedings and the provisional remedy in arrest and bail. As was pointed out in Young v. Gray, Harp. 38, quoted with approval in DuRant v. Brown Motor Co., 147 S.C. 88 144 S.E. 705, 708: 'The writ of attachment, although a sort of proceeding in rem, like any other original writ, is intended to bring the defendant into court, and if he does appear and plead to the merits, like every other, it is functus officio. Its peculiar character is lost, and from thence the proceeding is merely personal, and must be governed by the same rules. The defendant did appear and plead; and, according to the rule, all objections to the regularity of the writ were waived, and cannot now avail the defendant.' (Emphasis added.)

In some jurisdictions this rule of practice has been applied to bail in civil actions. In Sedgewick v. Houston, 9 Houst. Del., 113, 32 A. 12, 43 Am.St.Rep. 165, it was held that giving bail and thereby obtaining discharge from arrest constituted a clear waiver of any objections to the affidavit on which the arrest was based. It was said that the affidavit to hold to bail is to be considered as part of the process to bring the defendant into court; and any irregularity therein must be considered as having been waived when a defendant has voluntarily done an act submitting to such process, instead of taking steps to avail himself of such irregularity in the first instance, before giving bail or entering appearance. It is recognized, however, in the case of Sedgewick v. Houston, supra, that this rule of practice has been modified or abolished in several of the other states by statutory or constitutional provisions.

A different rule of practice prevails in this jurisdiction. As was said in Wessinger v. Duncan, 113 S.C. 205, 102 S.E. 6, 7: 'Arrest and bail is merely a matter ancillary to the action. The question of conformity to the statutes for arrest and bail are proper in a motion to discharge the arrest, but non-conformity to this statute does not defeat the cause of action * * *.'

Nor, we may add, does the giving of bail prior to making a motion to vacate the arrest or answering, waive defects in the affidavit on which the arrest was based.

While the affidavit to hold to bail may be considered as part of the process to bring the defendant into court, this is not its function. The summons in a civil action is the process by which the court obtains jurisdiction of a defendant. As shown by Section 525 of the Code: 'A defendant arrested may, at any time before judgment, apply, on motion, to vacate the order of arrest, or to reduce the amount of bail.'

One ground of appeal advanced by the defendant is that the verified complaint on which the clerk of court of common pleas issued the order of arrest does not specify the name of such court in the title of the cause as required by Section 456 of the Code; and that the proof of service, like the complaint, does not contain the name of the court, but instead contains the words, 'State of South Carolina.' For these reasons, it is argued that the court of common pleas lacked jurisdiction because of failure to comply with the law.

We think, under the facts and circumstances disclosed here, that the omission complained of is a mere irregularity. When the complaint was served upont he defendant, he promptly gave the statutory bond to the clerk of the 'Court of Common Pleas', and when he served his answer and counterclaim he correctly designated, in the caption, the court which had jurisdiction--that is, the 'Court of Common Pleas.' In addition to this, the words, 'Court of Common Pleas,' appear in the summons, in the order of arrest, in the bond, in the supporting affidavits; and likewise on the back of the summons to which all of these papers, including the complaint, were securely bradded as a unit.

In Huenfeld Co. v. Sims, 120 S.C. 193, 112 S.E. 917, the summons was not subscribed as required by the statute, but was held to be sufficient, since the complaint to which it was attached was duly signed and verified, and thus fulfilled the purpose of the requirement, which was to notify the defendant of the action and give him an opportunity to appear and defend. And to the same effect see Raines v. Poston, S.C. 38 S.E.2d 145. The proof of service contains none of the defendant adversely criticized in Cannon v. Haverty Furniture Co., 179 S.C. 1, 14, 183 S.E.2d 469. The defendant was not misled or prejudiced in the slightest degree. To sustain these objections would be to sacrifice substance to form.

It is next contended that the circuit judge erred in holding that the order of arrest signed and issued by the clerk of the court of common pleas was legal, when such order shows on its face that it was not subscribed or endorsed by the plaintiff or his attorney, as required by Section 504 of the Code.

An analogous and almost identical principle was decided in Huenfeld v. Sims, 120 S.C. 193, 112 S.E 917, where, as already pointed out, the summons was attached to the complaint and both were served together. The summons was not signed either by the plaintiff or his attorney, but the attorney's office address appeared in the body of the summons, and his name was subscribed upon the endorsement. In this case, the name and address of plaintiff's attorney was fully set forth in the body of the order. The order was annexed to and served with the summons, which was endorsed by ...