George v. Am. Ginning Co

• Decision Date: 09 March 1896
• Citation: 46 S.C. 1,24 S.E. 41
• Parties: GEORGE v. AMERICAN GINNING CO. BROWN . v. SAME.
• Court: South Carolina Supreme Court

24 S.E. 41

46 S.C. 1

GEORGE

v.AMERICAN GINNING CO.

BROWN .

v.SAME.

Supreme Court of South Carolina.

March 9, 1896.

Foreign Corporation — Action by Corporate Officer Acting for Nonresident —

Service of Process.

Service of summons, in an action against a foreign corporation, on an officer thereof who was also plaintiff's attorney in fact for the commencement and prosecution of such action, was invalid

Appeals from common pleas circuit court of Beaufort county; O. W. Buchanan, Judge.

Action by J. R. Carson George against the American Ginning Company, and by William C. Brown against the same defendant. From orders in each case refusing to set aside service of summons, and from judgments for the plaintiffs, defendant appeals. Reversed.

Elliott & Elliott, for appellant.

Tho. Talbird, for respondents.

McIVER, C. J. These two cases were heard together, but, while the principles upon which they depend are similar, the facts are not identical in the two cases, and hence it will be more convenient to consider them separately.

In the first-named case, the plaintiff, who resides in the city of New York, by a formally executed power, constituted William C. Brown, a resident of this state, her attorney in fact to commence this action and to take all necessary steps to obtain a warrant of attachment against the property of the defendant company, which is a foreign corporation, doing business in the town of Beaufort S. C. In pursuance of this power, the said W. C. Brown, on the 30th day of July, 1895, procured a summons and complaint to be issued in the name of the plaintiff against the defendant company, on a certain note alleged to have been executed by the defendant company in favor of the plaintiff, and on the same day sued out a warrant of attachment, which was levied upon the property of the defendant company upon the ground that it was a foreign corporation, the power of attorney having been filed before the warrant of attachment was issued. The sheriff returned that he had "served on the above named, the American Ginning Company, the summons and complaint in the action, by delivering copies thereof to W. C. Brown, treasurer, personally, and leaving the same with him." On the 11th September, 1895, Messrs. Elliott & Elliott, signing themselves "Defendant's Attorneys for the Purpose of This Motion Only, " served a notice on Mr. Talbird, as plaintiff's attorney, in which it was expressly stated that they appeared only for the purpose of this motion; that they would move before his honor, Judge Buchanan, at a specified thus and place, "to set aside the service of the summons and complaint in this action, upon the grounds: (1) Because the affidavit upon which the attachment was issued was sworn to before the plaintiff's attorney, and the justification of the sureties on the undertaking was made before him; (2) that the service of the summons was irregular, in that it was made on the attorney in fact of the plaintiff, who acted for plaintiff in procuring the issue of the writ of attachment as manager of the defendant corporation." It was admitted at the hearing of this motion "that William C. Brown, upon whom the summons and complaint were served, was the same William C. Brown who was the attorney in fact of the plaintiff." The motion was refused by Judge Buchanan, and he, on the same day, rendered judgment by default against the defendant company. From this judgment, as well as from the refusal of the motion to set aside the service of the summons and complaint, and to discharge the attachment, defendant appeals, upon the following ground: "Because the service of the summons upon William C. Brown, as an officer of the defendant corporation, he being at the same time the attorney in fact of the plaintiff for the commencement and prosecution of the action, was not i sufficient service of the summons upon the...