Lee v. Storfer

• Decision Date: 12 December 1930
• Docket Number: 13037.
• Citation: 156 S.E. 177,159 S.C. 70
• Parties: LEE v. STORFER et al.
• Court: South Carolina Supreme Court

156 S.E. 177

159 S.C. 70

LEE v. STORFER et al.

No. 13037.

Supreme Court of South Carolina

December 12, 1930

Appeal from Common Pleas Circuit Court of Charleston County; M. M Mann, Judge.

Action by James Lee against S. J. Storfer and another. From an order dismissing the action, plaintiff appeals.

Reversed.

J. C Long and C. R. Burbage, both of Charleston, for appellant.

Nathans & Sinkler, of Charleston, for respondents.

BLEASE J.

On January 18, 1930, the plaintiff, James Lee, by his attorneys began this action in the court of common pleas for Charleston county. S. J. Storfer was not a resident of this state, but was temporarily residing at the Timrod Inn, a hotel in the city of Charleston. The summons in the action, in the usual form, was entitled, "James Lee, Plaintiff, v. S. J Storfer and one Buick Automobile, bearing State of Illinois License No. 192853, Defendant."

In the title of the copy of the summons, the name of the defendant appeared as "J. F. Storfer." On the back thereof the name of the defendant appeared as ""S. J. Storfer."

On January 18, 1930, Fred C. Stall, a citizen and resident of Charleston county, who had been called upon to make service of the summons on the named defendant, S. J. Storfer, served Storfer at the Timrod Inn, by delivering to him the copy of the summons with the name of the defendant incorrectly set forth therein as "J. F. Storfer" instead of "S. J. Storfer," and made proof of service in the usual form. Mr. Stall later swore that, in making the service, he inquired of the person served if his name was "S. J. Storfer," and, upon ascertaining such to be the case, he delivered the copy of the summons to S. J. Storfer, the defendant named in the original summons.

The complaint in the action was not served with the summons, the defendant being notified therein that the complaint would be filed in the office of the clerk of court of common pleas for Charleston county.

On January 22, 1930, the plaintiff caused to be filed in the office of the clerk of court the original summons, with the proof of service thereon, the complaint in the action, the title thereof showing S. J. Storfer as the defendant, and a warrant of attachment, in which the name of the defendant also appeared as S. J. Storfer. The warrant of attachment had not been served however.

On February 7, 1930, Messrs. Nathans & Sinkler, as attorneys for "J. F. Storfer," in a suit entitled, "James Lee, Plaintiff, v. J. F. Storfer and One Buick Automobile, bearing State of Illinois License No. 192853, defendant," served upon the attorneys for the plaintiff a notice of appearance, and demanded that a copy of the complaint in the action be served upon them. Soon thereafter, plaintiff's attorneys served upon Messrs. Nathans & Sinkler a copy of the complaint, the title of which showed the defendant to be S. J. Storfer. Messrs. Nathans & Sinkler, subscribing themselves "Attorneys for the defendant, S. J. Storfer," on February 12, 1930, acknowledged service of the complaint in the case of "James Lee, plaintiff, v. S. J. Storfer and One Buick Automobile, bearing State of Illinois License No. 192853, defendant."

On March 3, 1930, Messrs. Nathans & Sinkler, appearing only for the purpose of the motion intended to be made and without submitting S. J. Storfer to the jurisdiction of the court, notified plaintiff's attorneys that they would move on March 10th, before his honor, Circuit Judge Mann, presiding in the court of common pleas for Charleston county, for an order dismissing the action of ""James Lee, Plaintiff, v. S. J. Storfer," etc., and requiring the clerk to cancel the same on the records of the court. This motion, at the proper time, came on to be heard before the circuit judge, who granted the same.

No reasons were given by the circuit judge for his order, but it was based evidently upon the fact stated in the affidavit of the defendant S. J. Storfer, which was conceded by the plaintiff, that the copy of the summons served on the defendant gave his name as "J. F." Storfer instead of his correct name of S. J. Storfer. From the order of Judge Mann, the plaintiff has appealed to this court.

The summons in a civil action is the necessary process by which the court obtains jurisdiction of the defendant. A civil action in the courts of record of this state must be commenced by the service of a summons. Section 383, Volume 1, Code of 1922. The record here shows that the proper summons was issued and subscribed by the plaintiff's attorneys, as required by section 384, Id.

Under the provisions of section 390, Id., the summons is to be served by delivering a copy thereof to the defendant named therein. The question here then does not relate in any way to the original summons, but really concerns the validity, under the circumstances, of the service of the original summons on the defendant by delivering to him a paper which was not an exact and correct copy of the original summons .

In Heyward v. Williams, 48 S.C. 564, 26 S.E. 797, 798, speaking for this court, Mr. Justice Jones said: "The whole spirit of the Code is opposed to the disposition of a cause upon mere technical errors and irregularities, and seeks a fair hearing on the merits; hence the very ample powers of amendment conferred on the trial courts."

Speaking of the process by which a defendant is brought within the jurisdiction of the court, Cyc. says this: "The copy should be substantially correct, but is not to be construed with the same strictness as the original. The copy need not contain any indorsement by the...