Robertson v. Cooper

• Decision Date: 06 August 1934
• Docket Number: 13899.
• Parties: ROBERTSON v. COOPER et al.
• Court: South Carolina Supreme Court

175 S.E. 524

173 S.C. 305

ROBERTSON v. COOPER et al.

No. 13899.

Supreme Court of South Carolina

August 6, 1934

Appeal from Common Pleas Circuit Court of Chester County; Thos. S Sease, Judge.

Action by E. R. Robertson against Carl C. Cooper, doing business as Cooper Furniture Company, and another. From a judgment for plaintiff, the named defendant appeals.

Affirmed.

J Gordon Hughes, of Union, and Hemphill & Hemphill, of Chester for appellant.

McDonald Macaulay & McDonald and A. L. Gaston, all of Chester, for respondent.

CARTER Justice.

As a statement of this case the court adopts, in the main, the agreed statement of counsel appearing in the transcript of record.

The action, by E. R. Robertson, as plaintiff, against the defendant Carl C. Cooper, doing business as Cooper Furniture Company, and also the defendant J. C. Hudson, was commenced, by summons and complaint, in the court of common pleas for Chester county, October 19, 1931. Separate answers were filed by the defendants. The complaint alleged, in substance, that during the year 1928, the plaintiff had, by three separate contracts, purchased from the defendant Cooper certain articles of household furnishings, and in each instance plaintiff had signed a chattel mortgage to secure to Cooper the payment of the purchase price; that the aggregate of said purchase price for said goods amounted to the sum of $82.40, and that thereafter the plaintiff, from time to time, in small payments, paid to the defendant Cooper the total sum of $69.00; that on January 22, 1931, two of the agents of the defendant Cooper came to the home of the plaintiff, in Chester, S. C., and demanded that they pay him, that is, pay them, the said agents for Cooper, a sum of money in excess of what he owed Cooper, and at the said time threatened that unless the sum so demanded was not paid by the plaintiff that they, said agents of Cooper, would repossess and carry away said personal property; that thereupon plaintiff informed said agents of Cooper that he could not pay the amount demanded, but stated that he would pay a portion of what he owed if allowed time to make arrangements; that thereupon said agents demanded possession of said goods, which possession the plaintiff refused; whereupon said agents left the vicinity of plaintiff's home; that after leaving plaintiff's home said agents of Cooper prepared what purported to be summons, complaint, and bond in claim and delivery proceedings, it being in that connection alleged that the bond was not signed by Cooper and was therefore void, and said agents, finding the magistrate for the city of Chester absent, and for the purpose of getting possession of said property and enriching Cooper, their principal, delivered said pretensive claim and delivery papers into the hands of the codefendant, J. C. Hudson, who was the magistrate's constable, and persuaded and induced the said constable, J. C. Hudson, to accompany them back to plaintiff's home so as to afford the said agents the pretense of making a lawful seizure of plaintiff's said property; and the plaintiff alleged in his complaint that the agents of Cooper then returned to plaintiff's home and demanded admission thereto, and upon being again refused admission, plaintiff was informed by said agents and/or constable that resistance was useless, and that they were armed by claim and delivery papers; that plaintiff, being overawed by the presence of said constable and believing that said agents had obtained legal papers, made no further resistance; and that said agents and said constable entered plaintiff's home and seized the mortgaged furniture and furnishings and carried same away. The plaintiff, further, alleged in his complaint in the cause that said entry into plaintiff's home was made after he had notified said agents that his wife was in a delicate condition and should not be disturbed, and it was claimed that as a result of said entry and seizure of said property that the plaintiff had been humiliated and he and his wife and children left destitute and without sleeping accommodations and deprived of means of cooking the evening meal, and that plaintiff and his family would have been compelled to remain cold and hungry had not some of his neighbors furnished him and his family with board and lodging for some time as a matter of charity. The plaintiff, further, in his said complaint set forth that the said agents of Cooper, after obtaining possession of said mortgaged chattels, failed to leave the same in the custody of an officer of the law for three days, but on the contrary loaded said goods on a truck, and transported them to Union, S. C., and that the defendant Cooper had converted same unto his own use and made no accounting to the plaintiff therefor, and that Cooper had refused, notwithstanding a telegraphic demand, to return said goods to the plaintiff; and plaintiff, further, alleged that the entry into plaintiff's home over his protest and the seizure and taking away of said property was an illegal, willful, wanton, and malicious trespass, as a result of which plaintiff had been humiliated and damaged in the sum of $5,000.

The defendant Hudson, in answering the plaintiff's allegations, entered a general denial, and denied any knowledge or information sufficient to form a belief as to the transactions between plaintiff and Cooper, and for a further defense alleged that on the 22d day of January, 1931 the agents of Cooper went to the office of Magistrate Davidson, whose constable he (Hudson) was, and placed in his hands claim and delivery papers for service, which papers he alleged had been duly and legally prepared and which papers commanded that he (Hudson) take possession of plaintiff's said furniture, and that, feeling that it was his duty so to do, he served said papers on the plaintiff and took possession of said furniture. The defendant Hudson, in his answer, specifically denied that plaintiff had protested against the taking of said furniture, but to the contrary alleged that plaintiff had designated and delivered the property mentioned and described in the claim and delivery papers. While admitting that Magistrate Davidson was absent from his office on account of illness, Hudson alleged that it had long been the custom and that he had been authorized by said magistrate that whenever legal papers were brought to the said magistrate's office for service during the absence of the magistrate that he (Hudson) should serve the copies of the papers on the person of each defendant, and that the magistrate "should sign the original process upon his return to the office." Defendant Hudson specifically denied that his entry into plaintiff's home was illegal, willful, or wanton, but, on the contrary, alleged that he entered by virtue of legal authority as was his duty as an officer of the law to do, and that he did nothing more than was his duty as an officer to do, and that he in no wise injured or wronged the plaintiff. The defendant Cooper, in answering plaintiff's complaint, entered...