State v. Sullivan

• Decision Date: 10 December 1923
• Docket Number: 11366.
• Citation: 121 S.E. 47,127 S.C. 186
• Parties: STATE v. SULLIVAN.
• Court: South Carolina Supreme Court

121 S.E. 47

127 S.C. 186

STATE v. SULLIVAN.

No. 11366.

Supreme Court of South Carolina

December 10, 1923

Appeal from General Sessions Circuit Court of Charleston County John S. Wilson, Judge.

From an order that defendant M. S. Sullivan had violated the conditions of a suspended sentence for violation of the dispensary laws, and making the sentence immediately effective, defendant appeals. Appeal dismissed.

Watts and Cothran, JJ., dissenting.

Logan & Grace and John I. Cosgrove, all of Charleston, for appellant.

Thomas P. Stoney, of Charleston, for the State.

GARY C.J.

This is an appeal from the following order of his honor, Judge Wilson:

" This matter comes before me on the rule to show cause first issued on the 26th day of September 1922, which required that the defendant, M. S. Sullivan, do show cause before me why the conditions of a suspended sentence for violation of the dispensary law imposed upon the defendant by his honor, I. W. Bowman, of this court, at the February, 1917, term of this court, should not be vacated and such sentence become forthwith effective. Exercising the discretion vested in me by the terms of this suspended sentence of his honor, Judge I. W. Bowman, I ordered that the affidavit upon which the motion was based and the order to show cause be served upon the defendant personally or left at his last known place of residence in the city of Charleston S.C. The affidavit on which the motion of Solicitor Stoney was based was signed by Louis Poppenheim, and is duly set forth. In the rule to show cause dated September 26, 1922, M. S. Sullivan was required to show cause before me on Monday morning at 10 o'clock, the 2d day of October, 1922. It appears that inadvertently in this motion it was stated that the sentence as imposed upon M. S. Sullivan was imposed by his honor, Judge R. Withers Memminger. It further appears that as soon as this error was detected that another rule to show cause was issued on the 27th day of September, A. D. 1922, and again exercising the discretion vested in me under the terms of the suspended sentence, I, as judge, ordered that a copy of the affidavit upon which the motion was based be served upon the defendant personally or left at his last known place of residence in the city of Charleston. This rule was returnable on Tuesday morning, the 3d day of October, 1922, at 10 o'clock a. m., or soon thereafter as counsel could be heard. This matter came on for a hearing on the afternoon of October 3, 1922. The return of the sheriff shows that the first rule was served at the residence of M. S. Sullivan, on Congress street, in the city of Charleston, the same having been left with the wife of the said M. S. Sullivan. The rule as dated September 27, 1922, by return of the sheriff, shows that the same was left at the residence of M. S. Sullivan on Congress street with Mrs. H. Svendsen, termed by the sheriff 'a person of discretion.' Counsel for the defendant takes the position that by reason of the fact that this rule was not served personally upon M. S. Sullivan that this court has no jurisdiction. An affidavit was duly submitted by the solicitor, signed by Louis Poppenheim, setting forth that M. S. Sullivan was absenting himself from the city of Charleston for the avowed purpose of delaying the action of this court, in so far as the same would affect him. By reference to the sentence of Judge I. W. Bowman, it was never contemplated that M. S. Sullivan could evade the findings of this court by undertaking to absent himself from the jurisdiction of same, in order to defeat the terms and conditions of the sentence which he voluntarily accepted, and is now stopped from denying. Furthermore, no showing whatsoever was made to me as to why M. S. Sullivan could not have been in court in person if he had desired so to do. The record is peculiarly silent on this point.

The sentence as imposed upon the defendant by his honor, Judge I. W. Bowman, together with the conditions thereof, is as follows:

'It is the judgment and sentence of the court that the within named M. S. Sullivan be confined at hard labor upon the public works of the county of Charleston for a term of six months, or a like term at hard labor in the state penitentiary.

It is further ordered and adjudged, however, that four months of the sentence herein imposed be, and the same is hereby suspended upon the conditions hereinafter imposed, that is to say, upon the payment to the clerk of the court of said county the sum of $150, or a service of a term of two months at hard labor on the public works of the county of Charleston or a like period at hard labor in the state penitentiary, and upon the further express condition that the within named M. S. Sullivan shall not in any way violate any of the laws of this state, or municipal ordinances, relating to alcoholic liquors, whether of a regulative or prohibitive nature, either directly or indirectly, or through the means of any form of agency, copartnership, or any other form of method of business so designed, and shall not in any manner use, or knowingly become a party to the use of, any premises, or engage in any manner or form in any business, whereby such laws or ordinances shall be violated; and in the event that it shall be brought to the attention of the court that such terms and conditions, or any of them, are not being observed, and the court shall, upon an investigation thereof in such manner as shall to it seem proper, conclude that the terms and conditions as hereinabove set forth have been in whole or part violated, then the suspension of sentence as herein imposed shall thereupon immediately cease, and the within named M. S. Sullivan shall forthwith suffer and undergo the sentence of the court as above imposed, that is to say, shall be confined at hard labor upon the public works of the county of Charleston for the remainder of said term, namely, four months, or for a like period, in like manner, in the state penitentiary.

[Signed] I. W. Bowman, Presiding Judge.

February 20, 1917.'

After hearing testimony of the witnesses for the state, and upon careful consideration of the entire record before me, the evidence being in, I am satisfied that the defendant M. S. Sullivan has, since the sentence before referred to, violated the terms under which the said sentence was suspended, and that the terms and conditions of the said sentence have been violated.

It is therefore ordered that the conditions of the sentence of this court hereinbefore referred to be and the same are hereby vacated, and that the said sentence be and become immediately effective, that is to say, that the said defendant M. S. Sullivan be confined at hard labor on the public works of Charleston County for a period of four months or for a like period in like manner in the state penitentiary.

[Signed] John S. Wilson,

Presiding Judge.

Charleston, S. C., October 5, 1922."

The exceptions are as follows:

"The presiding judge, it is respectfully submitted, erred in refusing defendant's motion to dismiss the rule herein, the error being that said rule to show cause had not been served personally on defendant, M. S. Sullivan, so that the trial court was without jurisdiction to hear the matter or pass judgment thereon.

The presiding judge, it is respectfully submitted, erred as a matter of law and abused his discretion in declaring the suspended sentence violated and in ordering the same vacated; the error being that there was an entire failure of evidence to support such finding and upon which to base the order herein appealed from."

The first question that will be considered is whether the appellant had reasonable notice of the rule to show cause why the suspended portion of the sentence should not be carried into effect. The fact that the defendant employed an attorney to represent him necessarily shows that he (the appellant) had notice that the rule to show cause had been issued. It was not necessary for him to be personally served with a copy of the rule to show cause, but the notice was sufficient if he was informed that a copy of the rule to show cause was left at his residence for him, with a proper person. Furthermore, the uncontradicted testimony is to the effect that the appellant had endeavored to avoid service of a copy of the rule to show cause.

There is another reason why the appellant cannot interpose the objection that he was not personally served with a copy of the rule to show cause. The question raised by the second exception involves the merits of the case and was a waiver of the appellant's right to raise the objection that he had not been personally served with a copy of the rule to show cause. Fitzgerald v. Case Co., 94 S.C. 54, 77 S.E. 739; Williams v. Hatcher, 95 S.C. 49, 78 S.E. 615; Wichman & Son v. Fox, 96 S.C. 469, 81 S.E. 180; Mims v. Garvin et al., 106 S.C. 381, 91 S.E. 289.

The second exception is also without merit.

Appeal dismissed.

FRASER and MARION, JJ., concur.

WATTS and COTHRAN, JJ., dissent.

FRASER J. (concurring).

The position of the appellant in this case does not appeal to me.

I can see how a nonresident can move to set aside a service and appear for that purpose only. The idea is not that he did not know, but, being a nonresident, the court has no jurisdiction of him and cannot acquire it that way. He can appear for that purpose only.

I can see how a person who has no notice of a proceeding against him might appear and ask the court to open its judgment against him and show that he had no notice, either actual or constructive. It is logical to allow him to appear for the sole purpose of setting aside the service.

The object of service it to give notice, and the purpose of personal service is to be sure that the person served has...