Halsey v. Minn.-south Carolina Land & Timber Co

• Decision Date: 18 November 1932
• Docket Number: No. 13517.,13517.
• Citation: 166 S.E. 626
• Court: South Carolina Supreme Court
• Parties: HALSEY. v. MINNESOTA-SOUTH CAROLINA LAND & TIMBER CO.

166 S.E. 626

HALSEY.

v.MINNESOTA-SOUTH CAROLINA LAND & TIMBER CO.

No. 13517.

Supreme Court of South Carolina.

Nov. 18, 1932.

Appeal from Common Pleas Circuit Court of Charleston County; C. J. Ramage, Judge.

Action by Alfred O. Halsey against the Minnesota-South Carolina Land & Timber Company and another. From an order refusing to transfer the cause to another county, defendant named appeals.

Affirmed.

Legare Walker, of Summerville, and Lide & McCandlish, of Marion, for appellant.

Mitchell & Horlbeck, H. L. Erckmann, and J. C. Long, all of Charleston, for respondent.

W. C. COTHRAN, A. A. J.

It seems difficult for this case to find a landing field. It was commenced in the court of common pleas for Charleston county where it was first tried, resulting in a directed verdict for the defendants. Upon appeal to this court, the judgment was reversed, and the cause remanded for a new trial. 162 S. C. 281, 160 S. E. 843. Up to this time no difficulties had arisen. After argument in this court and pending the decision, the defendant R. L. Montague, a resident of Charleston county, died, and, it being conceded that the cause of action against him did not survive, the other defendant, Minnesota-South Carolina Land & Timber Company, was left as the sole defendant This defendant, a foreign corporation, immediately filed its petition and bond for removal of the cause to the federal court, which petition and bond were approved by the court of common pleas for Charleston county. The plaintiff thereupon moved the federal court to remand the cause to the state court, the motion was granted, and Charleston county was again fixed as the place for trial. The sole defendant then appeared before the circuit court and moved for a transfer of the cause to Dorchester county, alleging that it had no agent or officer in Charleston county, that it had no property there nor did it do business there, but that it did have property and an agent in Dorchester county. The motion was refused, and this appeal is from the refusal to transfer the cause from Charleston county to Dorchester county.

The action was commenced January 14, 1929, being a suit in tort for fraud and deceit. The defendant Minnesota-South Carolina Land & Timber Company was a foreign corporation, and the defendant Montague was a resident of Charleston county. It is conceded by all parties that the court of common pleas for Charleston county was the proper county for the trial of the cause when the action was commenced and when it was actually tried. It is likewise conceded that the cause of action against Montague abated with his death, and that at the time of the motion for transfer to Dorchester county the foreign corporation was the only defendant.

Upon the foregoing statement of facts, the question of the right to transfer the cause arises as practically the sole issue, and the decision of that issue will be decisive of the appeal.

With much research and refinement of argument, the appellant insists that a transfer of the cause should be ordered. The respondent insists that the court of Charleston county was, and is, the proper county for trial as a matter of law, and also for the reason that the circuit judge found in his decree as a matter of fact that at the time of the commence ment of the action the foreign corporation had an agent in Charleston county.

The exact question presented by this appeal is admitted by counsel to be undecided by the courts of this state, and this has caused an investigation of the authorities independently of the briefs of counsel. The case of Georgia-Carolina Gravel Company v. Blassingame, 129 S. C. 18, 123 S. B. 324, 326, is somewhat in point, although not conclusive. In that case the plaintiff brought suit against the defendant Blassingame, and joined as parties defendant the Beaufort county highway commissioners and Beaufort county directors. A demurrer by the commissioners and directors was sustained by the circuit court, and the cause dismissed as to them. The defendant Blassingame appeared for the sole purpose of objecting to the jurisdiction of the court to try the cause as to him in the event the demurrer should be sustained; he being a resident of Greenville county. Upon sustaining the demurrer, the circuit judge ordered the case against Blassingame, then the sole defendant, transferred to Greenville county for trial. The plaintiff appealed from the order of the circuit judge upon the grounds that the demurrer should not have been sustained and that the special answer of Blassingame should have been stricken out. The question of the transfer to Greenville county was not raised. The circuit judge held that Blassingame had the right to have the case transferred, and the opinion of this court contains the following: "If Blassingame was not a resident of Beaufort county, as alleged in his special answer, and if the Beaufort county officials were not necessary or proper parties defendant to the action, it is clear that the real question at issue was the venue of the action, involving the substantial right of Blassingame to have the case tried in the county of his residence."

As the direct point at issue in the present, case was not raised in the Blassingame Case, it is apparent that the question was not formally decided. In addition to this, the two causes are materially different. In the Blassingame Case the commissioners and directors were not proper parties to the suit from the beginning; Blassingame, a resident of Greenville county, being the only proper defendant. Nor was the Blassingame Case ever tried in Beaufort county. The circuit court had jurisdiction of the commissioners and directors, it is true, but it could not try the cause against them for the reason that no cause of action existed. Blassingame was the only defendant against whom a cause of action existed, and he was a resident of Greenville county.

In the present case the circuit judge found, as before stated, as a matter of fact, that the appellant, at the time the suit was begun, had an agent in Charleston county. Even though this might be sufficient as a fact, not reviewable by this court, to give the court jurisdiction, we prefer to decide the case on the juris-dictional ground, owing to the importance of the question involved.

The provision of the Code, § 422, is as follows: "And if there be more than one defendant, then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action."

The first part of this section of the Code refers to cases where there is only one defendant, and provides that in such an event the cause of action shall be tried in the county where the defendant resides at the time of the commencement of...