Dow v. Bolden

• Decision Date: 11 February 1965
• Docket Number: No. 18304,18304
• Citation: 245 S.C. 321,140 S.E.2d 473
• Parties: Amal F. DOW, Respondent, v. John Taylor BOLDEN, Appellant. G. Allen BLACK, Guardian Ad Litem for Larry Black, A Minor over the age of fourteen (14) years, Respondent, v. John Taylor BOLDEN, Appellant.
• Court: South Carolina Supreme Court

Page 473

140 S.E.2d 473

245 S.C. 321

Amal F. DOW, Respondent, v. John Taylor BOLDEN, Appellant.

G. Allen BLACK, Guardian Ad Litem for Larry Black, A Minor over the age of fourteen (14) years, Respondent, v. John Taylor BOLDEN, Appellant.

No. 18304.

Supreme Court of South Carolina.

Feb. 11, 1965.

Leatherwood, Walker, Todd & Mann, Greenville, for appellant.

Richard J. Foster, Greenville, for respondent.

BUSSEY, Justice.

The two cases here involved arise out of an accident which occurred in Greenville on November 3, 1962, at which time the plaintiff Dow was operating an automobile, occupied by the minor plaintiff Black, which was allegedly in a collision with an automobile owned and operated by the defendant Bolden. The complaints in each action allege Bolden to be a resident of the County of Greenville.

The defendant, for several years prior to the time of the accident, was engaged as a construction worker and in and out of Greenville in connection with different construction jobs, but there is nothing in the record to show that prior to the accident he had been away from Greenville or out of the state for any appreciable length of time. He was married, with one child, and his wife resided near 'the Ware place', her address being Route 3, Belton, South Carolina (the record does not disclose whether such is in Anderson County or Greenville County, it being inferential that she resided near the county line). His mother resided at 98 Gibbes Street, in the City of Greenville, and a woman by the name of Mattie Stevenson, with whom the defendant apparently had at least some connection, resided at 7 Mansell Street, in the City of Greenville. The evidence is in some conflict as to which of these three addresses was the residence of the defendant on or about November 3, 1962. However, it is clear that he was a resident of South Carolina.

At some time after November 3rd, the date of the collision, and not later than December 20, 1962, the defendant left the State of South Carolina, his avowed destination being either Decatur or Birmingham, Alabama, the exact date of his departure not being established, and since that time he apparently has not been heard of or from in the State of South Carolina, except for one letter written to Stevenson shortly after his departure. Efforts to locate and contact the defendant since have been unsuccessful, his whereabouts being unknown to any interested person in this state so far as the record reflects.

At some time during the year 1963, the exact date not appearing, the plaintiffs sought to effect service upon the defendant under Code Sections 10-431 and 10-431.1, by forwarding process to the Chief Highway Commissioner, and letters addressed by certified mail to Bolden at both Birmingham and Decatur, Alabama, said letters being returned for insufficient address. On January 24, 1964, an order of the court was entered holding invalid and ineffective such attemped service upon the defendant.

Thereafter, on April 20, 1964, the judge of the Greenville County Court directed that the defendant Bolden be served by publication, such order being apparently predicated upon Section 10-451(2) of the Code which provides for such service, other prerequisites being present, 'When the defendant, being a resident of this State, has departed therefrom, with intent to defraud his creditors or to avoid the service of a summons or keeps himself concealed therein with like intent.'

Such order was issued upon affidavits of plaintiffs' attorney and deputy sheriffs of Anderson and Greenville Counties to the effect that the defendant could not be found in either of said counties, and upon affidavits of the mother and wife of the defendant as to the circumstances attendant upon his departure from the State of South Carolina.

After publication of the summons, attorneys representing the defendant Bolden's liability insurance carrier, which had filed a policy covering the defendant with the Safety Responsibility Section of the South Carolina Highway Department on an SR-22 filing, appeared solely for the purpose of questioning the jurisdiction of the court and the service of process upon the defendant, and, within due time, served in each case a notice of motion to quash and set aside the 'purported and attempted service.' Attorneys for both plaintiffs and defendant submitted affidavits in support of their respective contentions, and following a hearing, the judge of the County Court issued a single order holding that the evidence clearly established that the defendant departed from the State of South Carolina following the accident with the intent to avoid the service of a summons, and subsequently kept himself concealed in another state with like intent, and that said defendant was properly served by publication in accordance with Section 10-451(2) of the 1962 Code of Laws. From this order the defendant appeals.

His exceptions challenge the conclusion of the trial judge that the defendant departed the state following the accident with the intent to avoid the service of a summons in connection therewith. He relies strongly on the case of King v. Moore, 224 S.C. 400, 79 S.E.2d 460, a case involving the application of Section 10-451(2) of the Code of Laws, but a case in which the facts are not at all apposite with the case at bar. There it was held that the burden was upon the plaintiff to establish that the defendant had departed from the state for the purpose of avoiding the service of a summons. We agree with this proposition of law, but additional principles of law which govern this appeal were aptly stated in the fairly recent case of Lawson v. Jeter, 243 S.C. 103, 132 S.E.2d 276, in the following language:

'It is well settled that questions of fact arising on a motion to quash service of process for lack of jurisdiction of the person of the defendant are to be determined by the court. Bargesser v. Coleman Company, 230 S.C. 562, 96 S.E.2d 825. The findings of the circuit court on such issues are binding on this court unless wholly unsupported by the evidence or manifestly influenced or controlled by error of law. Bass v. American Products Export & Import Corporation, 124 S.C. 346, 117 S.E. 594, 30 A.L.R. 168; West's South Carolina Digest, Appeal and Error k1024(3).'

No exception expressly contends that the judge's findings of fact were manifestly influence or controlled by error of law, but the brief does argue that his Honor was so influenced in one respect, which we will hereinafter discuss. We will first revert to the principal question of whether the findings of fact by the lower court are wholly unsupported by the evidence, which, of course, necessitates a review of the same.

On April 16, 1964, Tecora Bolden, a resident of the City of Greenville, and mother of the defendant Bolden, signed an affidavit to the effect that her son, shortly after the November wreck, 'believing he would get into further trouble because of such wreck left the home'; that she had heard nothing from him since that time; that when he left the state he was going to Birmingham, Alabama, and did not leave any particular address. On April 18, 1964, Pauline Bolden, wife of the defendant, signed an affidavit to the same purport and effect as that of Tecora Bolden, except that each of affiants said that the defendant was residing at their respective addresses prior to departure. Both of these affidavits were before the court when service by publication was ordered.

In support of the motion to quash, attorneys for the defendant relied upon an affidavit of Tecora Bolden, dated June 19, 1964, in which she largely repudiated her affidavit of April 16th; an affidavit from Ernest W. Bolden, brother of the defendant; affidavit of Rosazella Gaines, a sister of the defendant; and an affidavit of Mattie Stevenson.

These four affidavits state, in effect, that the defendant did not leave Greenville under any apprehension of further trouble as a...