School Dist. No. 9 OF RICHLAND COUNTY v. Fowles

• Decision Date: 27 February 1911
• Citation: 70 S.E. 315,87 S.C. 552
• Parties: SCHOOL DIST. NO. 9 OF RICHLAND COUNTY v. FOWLES, Magistrate, et al.
• Court: South Carolina Supreme Court

70 S.E. 315

87 S.C. 552

SCHOOL DIST. NO. 9 OF RICHLAND COUNTY v. FOWLES, Magistrate, et al.

Supreme Court of South Carolina

February 27, 1911

Appeal from Common Pleas Circuit Court of Richland County; J. W. De Vore, Judge.

Certiorari by School District No. 9 of Richland County against James H Fowles, Jr., Magistrate in and for the County, and another to set aside a default judgment rendered by the Magistrate against the School District. From a judgment setting aside a judgment, defendants appeal. Reversed.

D. W Robinson, for appellants. Thomas & Lumpkin, for respondent.

GARY A. J.

The question presented by the exceptions is whether his honor the circuit judge erred in ruling that the judgment by default rendered by the magistrate against School District No. 9 of Richland County, was void, on the ground that it does not appear upon the face of the proceedings that the magistrate acquired jurisdiction of said defendant, inasmuch as the return does not show that Eargle, upon whom a copy of the summons and complaint was served, was a trustee of the said school district. The proof of service was as follows "F. T. Grimsley, being first duly sworn, says that he served the summons and complaint in this action on the defendant, by delivering to H. A. Eargle, and leaving with him the copy of the same at Columbia, S. C., Richland county, on the 5th day of March, A. D. 1910, and that deponent is not a party to this action." After the commencement of certiorari proceedings herein, F. T. Grimsley made the following affidavit: "F. T. Grimsley, being first duly sworn, says that he served the summons and complaint in the action, entitled John C. Weir v. School District No. 9 of Richland County, by request and direction of Jas. H. Fowles, Magistrate; that he was advised by said J. H. Fowles, and is informed and believes, that H. A. Eargle was, at the time said summons and complaint was served upon him, and still is, one of the trustees of School District No. 9 of Richland county; that said summons and complaint was served on H. A. Eargle because he was such trustee, and in his official capacity as a trustee; but the word 'Trustee' was not added after the name of the said Eargle, in proof of service by an oversight." After the commencement of said proceedings W. T. J. Lever, made an affidavit in which he said: "That at the time suit of John C. Weir v. School District No. 9 of Richland County, the State of South Carolina, was brought, the trustees of School District No. 9 consisted of this deponent, who was chairman, and one H. A. Eargle. W. E. Hinnant had been a member of the board and was the secretary, but...