Strickland v. Strickland
| Decision Date | 06 October 1913 |
| Court | South Carolina Supreme Court |
| Parties | STRICKLAND. v. STRICKLAND et al. |
1. Appeal and Error (§ 425*)—Notice of Appeal—Time for Service.
Where a judgment was filed after adjournment for the term, and no notice thereof was given to the unsuccessful party, a notice of appeal served by his attorney 11 days after the filing of the judgment was in time under Code Civ. Proc. 1912, § 384, giving parties 10 days after the service upon them of notice of judgment entered in vacation in which to serve notice of intention to appeal.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2155-2161; Dec. Dig. § 425.*]
2. Partnership (§ 279*) — Retirement of Partner—Assumption of Obligations by Other Partners—Effect Upon Creditors —Action—Venue.
Where a partnership composed of three individuals, which had contracted a debt, was dissolved prior to the institution of suit upon the debt, and it was agreed that two of the partners should assume the debts of the partnership, that agreement did not affect the rights of the creditor to hold the retiring partner; and therefore a justice in the county where the retiring partner resided had jurisdiction of an action against all three for the amount of the debt.
[Ed. Note.—For other cases, see Partnership, Cent. Dig. §§ 636, 637; Dee. Dig. § 279.*]
Appeal from Common Pleas Circuit Court of Colleton County; R. W. Memminger, Judge.
Action by J. F. Strickland against W. W. Strickland and others, formerly copartners doing business as the Fairfax Furniture Company. Judgment for the defendants, and plaintiff appeals. Reversed.
Padgett, Lemacks & Moorer, of Walter-boro, for appellant.
J. M. Patterson, of Allendale, for respondents.
HYDRICK, J. [1, 2] The respondents moved to dismiss this appeal on the ground that the notice of appeal was not served within the time required by law. From the affida vits we gather these facts: The cause was heard in term time, but the court reserved its decision, and it was filed after the court had adjourned for the term, on July 12, 1912. On July 23, 1912, notice of appeal was served on respondents' attorney by J. Henry Johnson, Esq., who makes affidavit that he delivered to him and left with him a copy thereof. As the parties have 10 days after the service upon them of written notice of the filing of orders, decrees, or judgments granted or rendered at chambers or filed in vacation (see Code of Procedure 1912, § 384, and cases cited in the note, and O'Rouke v. Paint Co., 91 S. C. 403, 74 S. E. 930), and as no such notice had been given to appellant's attorneys at that time, the service of notice of intention to appeal on July 23d was in time, although it was more than 10 days from the filing of the judgment. This makes it unnecessary to pass upon the validity of the service made by the sheriff, upon which appellant also relies. The motion to dismiss the appeal is therefore refused. Plaintiff brought this action in the court of a magistrate for Colleton county against the defendants named in the caption, as partners doing business under the name of the Fairfax Furniture Company. At the time of the commencement of the action, the defendant W. W. Strickland was a resident of Colleton county. The other defendants resided in Barnwell county. In January, 1911, when the contract sued on was made, the defendants were all members of the firm. Thereafter, in August, 1911, and before the commencement of the action, the defendant Strickland sold his interest in the partnership to the other defendants, who...
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