Garrett v. Herring Furniture Co.

• Decision Date: 22 June 1904
• Citation: 48 S.E. 254,69 S.C. 278
• Parties: GARRETT v. HERRING FURNITURE CO.
• Court: South Carolina Supreme Court

48 S.E. 254

69 S.C. 278

GARRETT v. HERRING FURNITURE CO.

Supreme Court of South Carolina

June 22, 1904

Appeal from Common Pleas Circuit Court of Greenville County Dantzler, Judge.

Action by J. W. Garrett against the Herring Furniture Company. From an order of the circuit court sustaining judgment of magistrate, defendant appeals. Affirmed.

McCullough & McSwain, for appellant Blythe & Blythe, for appellee.

GARY A. J.

The question raised by the exceptions is whether the defendant by answering to the merits, waived the right to insist upon the objection that the magistrate did not acquire jurisdiction of his person. The facts of the case are thus succinctly set out in the argument of the appellant's attorneys: "The defendant resided in the county of Spartanburg. He was sued in the magistrate's court in the county of Greenville. He appeared, first, for the purpose of pleading to the jurisdiction of the court only, and sought to tender testimony to sustain this plea and obtain the ruling of the court thereon. This was refused him. In order to prevent judgment by default, and specially reserving his right to object to the jurisdiction, and subject to such plea, he answered to the merits. Judgment went against him in the sum of $60. He appealed to the circuit court, principally upon the ground that the court below erred in not considering his plea to the jurisdiction at the time it was tendered. The circuit judge dismissed the appeal upon the ground that the defendant should have appeared solely for the purpose of objecting to the jurisdiction, and that when he thereafter answered and went to trial upon the merits he thereby waived such jurisdictional objection. From this order the defendant appeals."

Among other authorities, the appellant's attorneys rely upon 2 Enc. Pl. & Pr. 629, 630, in which the rule is stated as follows: "Where a special appearance is made in order to object to illegality in the service of process or to urge any objection for which a special appearance is appropriate, such special appearance is not waived and converted into a general one by answering to the merits after the objections are erroneously overruled. It is only where the defendant pleads in the first instance to the merits, without any special appearance, that objections to personal jurisdiction are waived." Also upon 3 Cyc. of Law & Proc., 525, 526 where the rule is thus stated: "In many jurisdictions the rule is well settled...