POPE
J.
The
action was commenced about the 19th day of September, 1900
by the service of a summons and complaint upon the defendant
in the city of Washington, District of Columbia, by a citizen
whose name was G. Russell Cain, although the defendant
refused to accept such service. On the 21st day of February
1901, upon the affidavit of said G. Russell Cain, made before
a notary public in and for the said District of Columbia, and
upon the affidavit of William N. Graydon, Esq., as
plaintiff's attorney, that no answer, demurrer, or notice
of appearance had been made upon him by the defendant in the
action, his honor W. C. Benet, as presiding judge, granted a
judgment for the plaintiff against the defendant for the sum
of $128.55, with interest on $125 from the 1st day of August,
1899, amounting in all to the sum of $142.81, and costs.
There was no attachment of defendant's property in this
state, although he owned a residence in the village of Due
West, in the county of Abbeville, in this state, at which his
mother lived. There was no order for publication of the
summons, and no publication thereof. There was no service of
the summons or complaint, except that attempted to be made in
the city of Washington, D. C. Judgment was duly
entered against the defendant by the plaintiff.
On the
23d day of March, in the year 1901, the defendant, through
his attorney, served upon the plaintiff, J. H. Wren, and his
attorney, the following notice (formal parts omitted):
"Please take notice that the undersigned, as attorney
for the defendant, J. Altheus Johnson, will at the next term
of the court of common pleas for Abbeville county, and on the
first day of said term, at 10 o'clock a. m., or as soon
thereafter as counsel can be heard, move the court to vacate
the judgment rendered in said case at the February, 1901,
term of said court, on the ground that the said court was
without jurisdiction to render said judgment, for the
following reasons, to wit: (1) Because the defendant was not
served personally with the summons in said case within the
state, nor was the said summons left with a person of
discretion,
nor upon any person whatsoever, residing at the residence or
employed at the place of business of said defendant within
the state. (2) Because said summons was not served upon the
defendant by publication, nor was an order of publication of
said summons made in the manner provided by law. (3) Because
this defendant has not voluntarily appeared in the case, nor
has he waived any of his rights under the law. The motion
will be made upon all the pleadings and proceedings in the
case, and upon the affidavits hereto attached. That the
undersigned will appear for the purposes above set forth, and
for no other."
The
following attached affidavit was served with the said notice:
"District of Columbia. J. Altheus Johnson, on oath, says
as follows: In regard to the proceedings instituted against
me by John H. Wren in the common pleas court of Abbeville
county, S. C., I wish to state the following facts: On April
1st I received a letter from Mr. Wm. N. Graydon, of Abbeville, S. C., bearing date of the day before
(31st March, 1900). To that letter I made response April 4,
1900. The original of the letter from Mr. Graydon and a copy
of my response thereto are hereto attached, to be taken and
read as a part of this affidavit. On June 3, 1900, I received
another letter from Mr. Graydon, of date the day before (June
2, 1900). To that letter I made response June 7, 1900. The
original from Mr. Graydon and a copy of my answer thereto are
also attached, to be taken and read as a part of this
affidavit of fact. I heard nothing further from Mr. Graydon
until March, 1901. However, on September 19, 1900, a young
man, whom I did not know, and whose name I did not inquire
about, came to my office, at 408 Fifth street northwest, in
the city of Washington, D. C., between 12 and 1 o'clock
midday, and asked me to accept service of a paper he had.
Looking at the paper, I saw it was a formal complaint drawn
from the common pleas court of Abbeville county, S. C., on
the claim of John H. Wren (referred to in the correspondence
above mentioned), and demanded judgment against me in the sum
of $128.45. I told the young man I would not accept service
of that paper. My refusal seemed to disappoint him. He
indicated the place which had been prepared, he said, for my
signature on the paper (which was evidently the paper
intended to be treated as the original in court), and he said
he had a copy of the paper to be left with me. I told him he
could leave with me his copy, if he wanted, but that I would
not at that time sign any waiver or acceptance of service.
The incident thus mentioned as taking place on the 19th day
of September, 1900, did not occur to me in any other light
than as a request that I waive or forego the formal citation
and service which it would be necessary to use to bring me
into court, unless I should agree to dispense with such
citation and service. I had made a proposition, by way of
compromise, intended to save Mr. Wren from loss. He was
evidently preferring to assert his claim in the courts. I was
content, in that view of the case, to stand on my rights as a prospective defendant, and let him first, by
the orderly process of the court, put me in a position where
he could legally demand either that I make answer to the
claim he was asserting, or else that the court take it as
confessed. I knew that I was either a resident of the state
of South Carolina, or that I was a nonresident, and I knew
that in either case the law had provided a method for serving
process necessary to be observed before the court would be
authorized to proceed to judgment in the absence of the
defendant. From the said 19th day of September, 1900, to the
5th day of March, 1901, I was not at any time within the
state of South Carolina, neither myself, my wife, nor either
of my children; but during all the time from September 19,
1900, to March 5, 1901, either my mother, or, in her absence,
some other person of discretion, was residing in the home at
Due West, S. C., which in the paper shown to me on September
19, 1900, is styled the 'Johnson Homestead.' During
all that period I did not hear a word from any person
concerning the claim of Mr. Wren, and did not even know that
a suit had been filed in his behalf. I did not assume that
the young man who spoke with me on the 19th day of September,
1900, had in his custody, 500 miles from the limits of the
state, the original papers in the suit then pending in the
common pleas court of Abbeville county. Nothing about his
air, manner, or words indicated that he was the authorized
custodian at that time of the original papers belonging to
the files of a court in South Carolina. I took for granted
that his visit, like the letter from Mr. Graydon on June 2,
1900, was merely on the line of having me indorse on a paper
to be thereafter filed in court a waiver of a right I was
entitled to stand on, and I declined to make the indorsement.
I knew that the law of South Carolina, when a resident
defendant could not be served with process within the limits
of the state, had provided service to be made on 'any
person of discretion residing at the residence or employed at
the place of business of said defendant,' but I had no
idea that on the 19th day of September, 1900, Mr. Graydon, or
any other person, was seeking to have process
from a State Court run outside the state, or have vitality
500 miles beyond the limits of the state. From July 18 to
July 25, 1900, I was in South Carolina, and three days of the
time at Due West, but I heard nothing during that time of any
suit of Mr. Wren; and barring the incident above mentioned on
September 19, 1900, I heard not a word about a suit pending
until March 5, 1901, when I received a letter from Mr.
Graydon that bore date of the day before (March 4, 1901).
This letter was of the following
tenor: 'Mr. J. Altheus Johnson, Washington, D. C.--Dear
Sir: I have this day entered up judgment against you in favor
of Mr. J. H. Wren for $151.58. Unless the amount is settled
at once, I will have to instruct the sheriff to levy upon
your property to pay said judgment. Yours truly, Wm. N.
Graydon.' The original of this letter of March 4, 1901, I
sent to an attorney at Abbeville, asking him to give the
matter the attention it deserved."
The
letters referred to as a part of the affidavit are too long
to be reproduced. Suffice it to say that Mr. Graydon's
letter to Mr. Johnson is a courteous note, calling his
attention to the plaintiff's claim placed in his hands
for collection. It concluded with these words: "Please
let me hear from you, as I don't want to take any steps
against a brother lawyer if it can be avoided." The
defendant's answer to this letter was also courteous, but
explains in detail why he cannot recognize the
plaintiff's claims as just, saying, "I do not regard
that I owe Mr. Wren according to these figures," and
showing in detail why he fails to accept and pay these
claims. The letter of June 2, 1900, of Mr. Graydon, is a
letter asking if defendant cannot accept service, as his
client has instructed that suit be brought. Mr. Johnson's
reply is courteous. He speaks of coming to the state in the
summer, "when the matter of personal service or
acceptance thereof could, of course, be had." No more
delicate relation...
