Raines v. Poston

• Decision Date: 11 May 1946
• Docket Number: 15836.
• Citation: 38 S.E.2d 145,208 S.C. 349
• Parties: RAINES v. POSTON.
• Court: South Carolina Supreme Court

38 S.E.2d 145

208 S.C. 349

RAINES v. POSTON.

No. 15836.

Supreme Court of South Carolina

May 11, 1946

George W. Keels, of Florence, for appellant.

Glenn O. Schultz and Kenneth R. Kreps, both of Columbia, for respondent.

OXNER Justice.

Respondent L. W. Raines, brought this action in the County Court of Richland County to recover damages alleged to have resulted from the negligent and reckless operation of a Ford automobile by appellant, M. M. Poston, in the City of Columbia, County of Richland, on September 9, 1945. On the following day, September 10th, this action was commenced and the Ford automobile, a 1941 model bearing 1945 South Carolina license No. D-60316, was attached by the Sheriff of Richland County. The warrant of attachment was issued under the authority of Section 8792 of the Code of 1942, which creates a lien on any motor vehicle for any damages to person or property caused by its negligent operation and gives to the person sustaining such damages a right to attach such motor vehicle. In the captions of both the bond and affidavit executed by respondent for the purpose of procuring the warrant of attachment, as well as in the caption of the complaint, both appellant and the Ford automobile above referred to are named as parties defendant. However, only appellant is named in the summons. Appellant was served with process and the car was attached in the City of Columbia. His attorney made a special appearance and moved to change the venue to Florence County on the ground that appellant was a resident of that County. The Court below held that the action was one in rem against the damage feasant automobile and in personam against appellant and granted the motion to transfer the action in personam to Florence County, but held that the action in rem against the car could be prosecuted in Richland County. Appellant contends that as the damage feasant automobile was not named as a defendant in the summons, the action was solely one in personam and that the Court erred in not transferring the entire case to Florence County.

Under the foregoing circumstances, respondent could have brought any one of three actions: (1) He could have brought an action in rem against the damage feasant car alone. The car having been found in Richland County, such an action could have been maintained in that County, but respondent could not have recovered any personal judgment and the payment of any judgment obtained could have only been enforced by a sale of the car. (2) Respondent could have brought an action solely in personam against appellant who could have required such an action to be tried in Florence County where he resided. (3) He could have in one suit, as respondent says was done, proceeded against the car in rem and against appellant in personam. In such an action appellant would have been entitled to a trial in his own County of the action in personam, but the Courts of Richland County could have retained jurisdiction for the trial of the action in rem. That any one of the foregoing actions could have been maintained is now well established by the following decisions of this Court: Hall v. Locke, 118 S.C. 267, 110 S.E 385; Williams v. Garlington et al., 131 S.C. 289 127 S.E. 20; Tolbert v. Buick Car, 142 S.C. 362, 140 S.E. 693; Mahon v. Burkett, 160 S.C. 48, 158 S.E. 141; Ackerman v. One Mack Truck and Trailer et al., 191 S.C. 74, 3 S.E.2d 684.

Appellant apparently concedes that respondent could have joined a proceeding in rem with a suit in personam, but contends that the action as brought was only in personam and predicates this contention solely upon the fact that the damage feasant car was not named in the summons. Respondent contends that the inadvertent failure to designate the car as a defendant in the summons does not have the effect of making the action solely one in personam. Hence the sole question for determination is this: Under the proceedings had in this case, was it essential to the maintenance of an action in rem against the damage feasant car that it be named as a defendant in the summons?

Section 427, Code of 1942, requires that a civil action 'shall be commenced by service of a summons'. The function of the summons is to bring the defendant within the jurisdiction of the Court and to give him notice of the action and an opportunity to appear and defend. It is the usual means of acquiring jurisdiction of the person of the defendant. State ex rel. Wolfe v. Sanders, 118 S.C. 498, 110 S.E. 808. In the instant case the personal defendant, appellant, was properly named as a defendant in the summons and was duly served. No question arises as to jurisdiction of him. As to the damage feasant car, we think jurisdiction was obtained by the seizure under the warrant of attachment.

In Hall...