Rosamond v. Earle
| Decision Date | 09 March 1896 |
| Citation | 46 S.C. 9,24 S.E. 44 |
| Parties | ROSAMOND. v. EARLE. |
| Court | South Carolina Supreme Court |
Appearance — Waiver of Defect in Summons.
Though a justice's summons requires defendant to appear within less than the time provided by Code, § 88. subd. 16, as amended by Act Dec. 22, 1891, defendant, by appearing before judgment, and answering and demurring to the merits, waives his right to question the jurisdiction of the justice because of such defect.
Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.
Action by James O Rosamond against John K. Earle Judgment for defendant. Plaintiff appeals. Reversed.
Adam G. Welborn, for appellant.
A. Blythe, for respondent.
The plaintiff brought action against defendant in trial justice's court for Greenville, in this state, to recover the sum of $46.50. The summons which was served upon the defendant on the 9th day of March, 1895, required him "to appear before the trial justice, at his office in Greenville city, on the 20th day from the service of this summons, exclusive of the day of service, at 11 o'clock a. m., to answer the said complaint, as judgment will be given by default." A complaint was served with the summons. On the return day (the 29th March, 1895), the defendant appeared in the trial justice's court, filed an answer to the merits, and also filed a demurrer in writing to the complaint, wherein he set up as grounds thereof: After several postponements of the hearing, on the 9th April, 1895, a hearing was had, at which hearing the defendant interposed his cause of demurrer, as it is set out in the paragraph marked "a." The trial justice sustained that cause of demurrer, and dismissed the complaint, and, on an appeal taken therefrom, Judge Aldrich, in the circuit court, sustained the order of the trial justice. From this order of Judge Aldrich, the plaintiff now appeals to this court, on the single ground that it was error to sustain the demurrer as to the jurisdiction when it is shown by the record that the defendant entered an appearance, filed his answer as to the merits, and in his demurrer, in addition to the question of jurisdiction, alleges that the complaint does not state facts sufficient to constitute a cause of action.
We think both the circuit judge and the trial justice were in...
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Jenkins v. Atlantic Coast Line R. Co.
... ... Co., 43 S.C. 186, 20 S.E. 980; Smith v. Walke, 43 ... S.C. 381, 21 S.E. 249; Rosamond v. Earle, 46 S.C. 9, ... 24 S.E. 44; Martin v. Fowler, 51 S.C. 164, 28 S.E ... 312; Bird v. Sullivan, 58 S.C. 50, 36 S.E. 494; ... Burckhalter v ... ...
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Best v. Seabd. Air Line Ry
...related to the person. Ex parte Perry Stove Co., 43 S. C. 186, 20 S. E. 980; Smith v. Walke, 43 S. C. 381, 21 S. E. 249; Rosamond v. Earle, 46 S. C. 9, 24 S. E. 44; Bird v. Sullivan, 58 S. C. 50, 36 S. E. 494; Burckhalter v. Jones, 58 S. C. 89, 36 S. E. 495; Baker v. Irvine, 62 S. C. 293, 4......
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Nixon & Danforth v. Piedmont Mut. Ins. Co.
...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 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 o......
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South Carolina State Highway Dept. v. Isthmian S. S. Co.
... ... That, quite ... [43 S.E.2d 136] ... is this case. Garrett v. Herring Furniture Co., 69 ... S.C. 278, 48 S.E. 254. Rosamond v. Earle, 46 S.C. 9, ... 24 S.E. 44, 45, from which we quote: 'We think that, if ... defendant in the case at bar had desired to exercise his ... ...