Washington v. Muse

• Decision Date: 20 May 1929
• Docket Number: 12667.
• Citation: 148 S.E. 227,150 S.C. 414
• Parties: WASHINGTON v. MUSE et al.
• Court: South Carolina Supreme Court

148 S.E. 227

150 S.C. 414

WASHINGTON v. MUSE et al.

No. 12667.

Supreme Court of South Carolina

May 20, 1929

Appeal from Common Pleas Circuit Court of Jasper County; J. Henry Johnson, Judge.

Suit and attachment proceedings by Annie Washington against E. T Muse, in which one Chrysler sedan automobile was seized under attachment. From the orders of the magistrate vacating both plaintiff's first and second attachment, plaintiff appealed to the Court of Common Pleas. The orders were affirmed by the court of common pleas, and plaintiff appeals. Appeal dismissed.

Charles E. Perry, Jr., of Ridgeland, for appellant.

H. K Purdy, of Ridgeland, for respondents.

STABLER J.

It appears that the plaintiff, on April 7, 1928, filed in a magistrate's court in Jasper county an affidavit alleging that the defendant Muse, while driving an automobile described in the affidavit along a highway in that county negligently ran into plaintiff's horse, damaging his said property in the sum of $100. The plaintiff also filed a bond and petition for a warrant of attachment. The magistrate then issued a summons, directing the defendant to appear and answer on April 28, 1928, and a warrant, and the automobile was attached on that day. Later, on the same day, the defendant Muse filed with the magistrate an undertaking and the car was released to him. On April 25, upon motion of the defendant, the magistrate dissolved the attachment upon the ground that the copy of the affidavit served upon the defendant did not show that the affidavit had been sworn to before a notary public.

On April 26 the plaintiff filed a new bond and affidavit, and thereupon the magistrate issued a new warrant of attachment and the car was again seized. The defendant Muse then appeared and filed another bond and the car was again released to him. Subsequently, on April 28 the defendant made a motion to dissolve the second attachment, which the magistrate granted upon the ground that it was a proceeding in rem, and that, the respondent having had two days notice to appear--that is, as required by the summons, April 28--the magistrate had no jurisdiction because of insufficient notice.

The plaintiff appealed to the court of common pleas from the magistrate's order dated April 25, vacating the first attachment, and also from his order dated April 28, vacating the second attachment, exceptions being duly filed in each appeal. On May 26 the matter was heard by his honor, Judge Johnson, who passed an order in each appeal affirming the judgment of the magistrate. By way of appeal from the orders of Judge Johnson, the following appears in the record:

"Appellant appeals:

"1. From the Order of the Hon. Court of Common Pleas affirming the Order of the Magistrate which vacated an attachment under date of April 25, 1928.

"2. From the order of the Hon. Court of Common Pleas affirming the Order of the Magistrate which vacated an attachment under date of April 28, 1928."

The record contains no exceptions or grounds of appeal from the circuit court-- certainly the...