Priester v. Ester

• Decision Date: 11 March 1925
• Docket Number: (No. 11716.)
• Citation: 127 S.E. 18
• Parties: PRIESTER. v. PR I ESTER et al.
• Court: South Carolina Supreme Court

127 S.E. 18

PRIESTER.

v.PR I ESTER et al.

(No. 11716.)

Supreme Court of South Carolina.

March 11, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Service (in Practice).]

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Allendale County; J. K. Henry, Judge.

Action by J. Bascom Priester against Nina Priester and others. From an order dismissing a proposed appeal by Nina Priester forwant of notice of intent to appeal within time required by statute, Nina Priester appeals. Orders affirmed.

S. G. Mayfield, of Bamberg, for appellant.

Carter, Carter & Kearse, of Bamberg, and Harley & Blatt and T. M. Boulware, all of Barnwell, for respondent.

MARION, J. In an action, the nature and scope of which are not clearly disclosed by the record, Judge Sease filed a decree out of term time. On the day of filing, attorneys for certain of the respondents mailed to the appellant's attorney a formal notice in writing of the filing of the decree, accompanied by a letter requesting that acceptance of service be indorsed on the back of the original, and the same returned to the forwarding attorneys. Appellant's attorney indorsed on the back of the original notice, "Service of the within notice of filing of decree accepted this June 30, 1923, " signed his name thereunder, and returned same to the senders. Thereafter on July 12, 1923, appellant mailed to the attorneys, representing all parties other than appellant, notice of intention to appeal from the decree of Judge Sease. The attorneys, who had given notice of the filing of the decree of Judge Sease, returned the appellant's notice of intention to appeal therefrom, with a statement to the effect that it was returned for the reason that it had not been served within the 10 days allowed by law. Thereafter, on motion duly noticed, his honor, Judge J. K. Henry, dismissed the appellant's proposed appeal from the decree of Judge Sease on the ground "that the notice of intention to appeal was not served within the time required by law." From Judge Henry's order of dismissal, appellant brings, this appeal.

Appellant's first and main contention is that the service of the notice of filing of the decree of Judge Sease was a service by mail, and that section 764 of the Code of Civil Procedure, 1922, is applicable and effective to extend the time for giving notice of intention to appeal from 10 days to 20 days. Under the section of the Code invoked which provides, "when the service is by mail, it shall be double the time required in cases of personal service, " it may be conceded that if the service in question was a "service by mail, '' the party so served would have had 20 instead of 10 days from the date of such service within which to give notice of intention to appeal. Sullivan v. Speights, 12 S. C. 561. But we are unable to concur in appellant's view that this was a service "by mail" within the meaning of the statute.

The Code, after specifying the conditions under which service by mail may be made, defines what constitutes such service by providing that "in case of service by mail, the paper must be deposited in the post office addressed to the person on whom it is to be served, at his place of residence and the postage paid." Code Civ. Proc. 1922, §§ 762 and 763. In Sullivan v. Speights, supra, it was expressly decided that the service was complete from the time the paper to be served is deposited in the post office, addressed to the person upon whom it is to be served, at the place of residence, with the postage paid. That holding was recognized and approved in Walters v. Laurens Cotton Mills, 53 S. C. 155, 159, 31 S. E. 1; Craig v. Ins. Co., 80 S. C. 151, 155, 61 S. E. 423, 18 L. R. A. (N. S.) 106, 128 Am. St. Rep. 877, 15 Ann. Cas. 216; and Royal Exchange Assurance v. R. R. Co., 95 S. C. 375, 79 S. E. 104. Thus it was held in Walters v. Laurens Cotton Mills, supra, that a notice of intention to appeal so deposited, addressed, etc., within the 10 days allowed, was a good service, although the notice was not received until after the expiration of the time limited for appeal. In that view of the statute—that the service by mail is complete when the paper is deposited in the post office, etc.—the primary purpose, it would seem clear, of the provisions of section 764 allowing double time to the party on whom such service is made, is to give the party so served the benefit of such ample time after the date of the mailing as would reasonably protect him against delays in the carriage and delivery of the mails.

In the case at bar the service relied on by respondents is not the deposit of the paper in the post office,...