Nixon & Danforth v. Piedmont Mut. Ins. Co.

• Decision Date: 30 June 1906
• Citation: 54 S.E. 657,74 S.C. 438
• Parties: NIXON & DANFORTH v. PIEDMONT MUT. INS. CO.
• Court: South Carolina Supreme Court

54 S.E. 657

74 S.C. 438

NIXON & DANFORTH v. PIEDMONT MUT. INS. CO.

Supreme Court of South Carolina

June 30, 1906

Appeal from Common Pleas Circuit Court of Colleton County; Prince Judge.

Action by Nixon & Danforth against the Piedmont Mutual Insurance Company. From an order granting a change of venue, plaintiff appeals. Affirmed.

Gary A. J., dissenting.

E. F Warren and J. G. Padgett, for appellant. Carlisle & Carlisle for respondent.

JONES J.

This action was commenced in Colleton county in May, 1905, and is upon an insurance policy issued by defendant to W. H. Nixon upon a stock of merchandise in said county which was destroyed by fire in December, 1904; the policy being assigned to plaintiffs after the fire. The defendant, a domestic corporation, appeared and answered to the merits. A motion on notice and affidavit was made by defendant at November term, 1905, of the court for Colleton, before Judge Prince, to transfer the case for trial to Spartanburg county. It appears by the affidavit submitted, which was not controverted by plaintiff, that at the commencement of the action, and now, the principal and only office for business of defendant company was, and is, in Spartanburg county, and that it had and has no agent or place of business in Colleton county. Judge Prince thereupon granted the motion, and plaintiffs appeal.

This action falls within the class of actions which under section 146 of the Code of Procedure, "shall be tried" in the county where the defendant resides. In the recent case of McGrath v. Piedmont Mutual Insurance Co., 54 S.E. 218, this court held that the court of common pleas of Abbeville county had jurisdiction to try a similar action against the same defendant, because of the fact that defendant had an agent in that county upon whom service was made. The rule as stated in that case, after review of the authorities, is that a domestic corporation resides in any county where it maintains an agent and transacts its corporate business. But in the present instance defendant had no agent in Colleton county, and therefore Colleton was not the proper county for the trial of the case, and defendant had the right to have the case removed to the county of Spartanburg, where it had residence. Section 147 of the Code expressly authorizes a change of the place of trial when the county designated for that purpose in the complaint is not the proper county. The order of the circuit court is also supported by the following cases: Blakely & Copeland v. Frazier, 11 S.C. 122; Steele v. Exum, 22 S.C. 278; Bacot v. Lowndes, 24 S.C. 392; Ware v. Henderson, 25 S.C. 387; Bell v. Fludd, 28 S.C. 313, 5 S.E. 810.

This would seem to be conclusive for affirmance of the order, but appellants urge that respondent, by appearance and answering to the merits, has waived its right to change of venue. This contention rests upon the theory that the question relates to jurisdiction of the person, and not to jurisdiction of the subject-matter. The case of McGrath v. Piedmont Insurance Co., supra, following Ware v. Henderson and Bell v. Fludd, supra, holds that the question relates to jurisdiction of the subject-matter, the power of the court to hear and determine the cause, and that appearance and answer cannot constitute a waiver, since jurisdiction of the subject-matter cannot be conferred by consent of the parties. The cases last above cited, and State v. Penny, 19 S.C. 218, show that a question as to jurisdiction of the subject-matter may be raised for the first time in the Supreme Court. Jurisdiction of the person is acquired by service of process or by general appearance, which is a waiver of all irregularities in the service of process or even the absence of process. Hence the numerous cases holding that appearance and answer is a waiver of jurisdiction of the person, as in Rosamond v. Erle, 46 S.C. 9, 24 S.E. 44, where there was a jurisdictional defect in the summons; in Allen v. Cooley, 53 S.C. 441, 31 S.E. 634, where there was an alleged want of service; in Chafee v. Postal Tel. Co., 35 S.C. 372, 14 S.E. 764, where the answering defendant was a foreign corporation; in Ex parte Perry Stove Company, 43 S.C. 185, 20 S.E. 980; Smith v. Walke, 43 S.C. 381, 21 S.E. 249; Bird v. Sullivan, 58 S.C. 50, 36 S.E. 494, where the appearing defendants were nonresidents, are in harmony with the rule stated in Ware v. Henderson. There are two cases--Baker v. Irvine, 62 S.C. 293, 40 S.E. 672; Garrett v. Herring Co., 69 S.C. 278, 48 S.E. 254--which may be supposed to support the view that one by answering to the merits waives objection to jurisdiction which depends upon the residence of the defendant. If this be the meaning of these cases, then they are in direct conflict with the rule stated in Ware v. Henderson, and the latter case of McGrath v. Piedmont Insurance Co., supra, which reaffirms the doctrine of Ware v. Henderson. If there be irreconcilable conflict among these cases, we are of the opinion that the true rule is stated in Ware v. Henderson.

Jurisdiction of the subject-matter of a suit...