Dunkin v. Froehde Mobile Homes, Inc., Civ. A. No. 7706.

• Citation: 208 F. Supp. 1
• Decision Date: 24 August 1962
• Docket Number: Civ. A. No. 7706.
• Court: U.S. District Court — District of South Carolina
• Parties: M. L. DUNKIN and Shirley Dunkin, a partnership, Plaintiffs, v. FROEHDE MOBILE HOMES, INC., Defendant.

208 F. Supp. 1

M. L. DUNKIN and Shirley Dunkin, a partnership, Plaintiffs, v. FROEHDE MOBILE HOMES, INC., Defendant.

Civ. A. No. 7706.

United States District Court E. D. South Carolina, Charleston Division.

August 24, 1962.

Henry B. Smythe (Buist, Buist, Smythe & Smythe) Charleston, S. C., for plaintiffs.

Edward D. Buckley (Bailey & Buckley) Charleston, S. C., for defendant.

WYCHE, District Judge (sitting by designation).

The above case is before me upon the motion of the defendant "to have the service of process on the Defendant in this action quashed on the ground that there has been no service of process on the Defendant in that the Defendant is a corporation organized and existing under the laws of the State of Indiana, and it is not engaged in business in the State of South Carolina, and the said M. L. Dunkin on whom service was attempted as an agent of the Defendant is not an agent of the Defendant and he cannot serve himself in that he is the Plaintiff, nor can his wife and partner, Shirley Dunkin, serve the said M. L. Dunkin as an agent for the Defendant in that her rights are in no way superior to the rights of the said M. L. Dunkin".

The case is also before me upon the motion of the defendant "to have the attempted service of process on the Defendant made on the Secretary of State of South Carolina and mailed to the Defendant in the State of Indiana in this action quashed on the ground that there has been no service of process on the Defendant in the State of South Carolina under the rules of Federal procedure, that Defendant is a corporation organized and existing under the laws of the State of Indiana and is not engaged in business in the State of South Carolina and its record agent for the service of process is one M. L. Dunkin, who is one of the Plaintiffs and he cannot serve himself in that he is the Plaintiff, nor can his co-Plaintiff serve him in that her rights are co-extensive with the rights of said M. L. Dunkin. Under the Statutes of the State of South Carolina the Secretary of State is not the agent for service of process on the Defendant."

Without waiving any of its rights and subject to all motions pending in this suit the defendant filed an answer to the complaint in the action and set up two counterclaims against the plaintiffs, and the plaintiffs have filed their reply to defendant's counterclaims and denied the same.

It appears from the facts in the case that M. L. Dunkin and Shirley Dunkin, husband and wife, were partners operating a business for the sale of house-trailers and for a period of years had dealings in South Carolina, with the defendant Froehde Mobile Homes, Inc. in connection with the purchase, sale and financing of Froehde house-trailers. The plaintiffs were at that time and are now citizens and residents of the State of South Carolina. The defendant is a corporation organized under the laws of Indiana, with its principal place of business in that State. On April 13, 1953, the defendant corporation was duly domesticated in South Carolina, by filing a certificate with the Secretary of State, certifying and declaring the principal office of said corporation in the State of South Carolina, to be "M. L. Dunkin, Froehde Midwest Trailer Sales Inc., (Route 4, Box 257-A, Augusta, Georgia) North Augusta, S. C." for service of process as provided by Section 12-721, Code of Laws of South Carolina, 1952. On December 12, 1958, the place of service was changed to "5429 Rivers Ave. Charleston Heights, South Carolina". No other change has been made in the designation or place of service, nor has the designation or domestication been cancelled. The action arises out of the transaction of business between the plaintiffs and the defendant in the State of South Carolina.

On April 9, 1962, summons and complaint were served by the United States Marshal on M. L. Dunkin as defendant's designated agent for service of process. On May 17, 1962, having obtained an extension of time in which to plead, the defendant moved to quash this service. On May 22, 1962, service was had on the defendant by having the Marshal deliver a copy of the summons and complaint to the Secretary of State of South Carolina, and a copy of the summons and complaint was forwarded by registered mail to the defendant at its principal place of business, in accordance with the provisions of Section 10-424 and/or Section 12-722, Code of Laws of South Carolina, 1952, with reference to substituted service.

In this case M. L. Dunkin is the statutorily appointed agent for service of process and not merely an agent by virtue of the work which he did;...