Opinion
13878
June 23, 1934.
Before STOLL, J., Richland, November, 1933. Order affirmed.
Action by the American Agricultural Chemical Company against Alfred G. Smith. From an order refusing to set aside the service of the summons and complaint upon defendant, he appeals.
The order of Judge Stoll is as follows:
This action was instituted on notes in the Court of Common Pleas for Richland County, S.C. The defendant served notice of a motion returnable before me at Kingstree, S.C. to set aside the service of the summons and complaint on the ground that the Court of Common Pleas for Richland County had no jurisdiction over the defendant, who it is alleged, is a citizen and resident of Lexington County and is not a resident of Richland County.
Counsel submitted to me affidavits of the defendant and affidavit of counsel for the plaintiff.
It appears that Alfred G. Smith, the defendant, owns a peach farm in Lexington County; that he votes there and considers Lexington County his permanent residence; his wife is the owner of a house and lot in Richland County, where the defendant is now actually residing; at the present time he is employed by the United States government in a soil survey of the State of South Carolina, and has his headquarters in Columbia, Richland County.
Considering these facts, however, I have reached the conclusion that his residence within the meaning of the venue statute (Code 1932, § 422), is still Lexington County, and that is the proper County in which he should be sued.
The defendant also makes the point the action should be dismissed by reason of the fact that service was effected by leaving a copy of the summons and complaint with the wife of Alfred G. Smith, at the home in Columbia, S.C. and that by reason of the fact that was not the permanent residence of the defendant service is ineffective. I cannot agree with this conclusion. It seems to me the defendant, Alfred G. Smith, really had two residences, and, while I am holding the proper venue is Lexington County, it appears to the Court the service is valid.
Under these circumstances this Court has jurisdiction to transfer the cause to Lexington County. Ex parte Jones, 160 S.C. 63, 158 S.E., 134, 77 A.L.R., 235; Mahon v. Burkett, 160 S.C. 48, 158 S.E., 141. It is therefore ordered and adjudged (1) that the above-entitled action be, and hereby is, transferred to the Court of Common Pleas for Lexington County, S.C.; (2) that the defendant is hereby given ten days from the date of this order in which to plead to the complaint.
Mr. Alva C. DePass, for appellant, cites: As to place of residence: 25 S.C. 385; 53 S.C. 198; 158 S .C., 496; 47 S.C. 98; 128 S.C. 315; 44 S .C., 177.
Messrs. Robinson Robinson, for respondent, cite: As to service: 93 S.C. 114; 76 S.E., 122 Ann. Cas., 1914D, 991; 124 S.C. 346; 117 S.E., 594; 30 A.L.R., 168.
June 23, 1934. The opinion of the Court was delivered by
This action, by American Agricultural Chemical Company, as plaintiff, against the defendant, Alfred G. Smith, was commenced in the Court of Common Pleas for Richland County, November, 1933, for the purpose of procuring judgment against the defendant for the amount alleged to be due the plaintiff by the defendant on certain promissory notes, alleged to have been executed by the defendant to the plaintiff, owned and upheld by the plaintiff. The case comes to this Court on appeal from an order of his Honor, Judge Philip H. Stoll, resident Judge of the third judicial Circuit, presiding in the fifth judicial Circuit, in which order his Honor refused a motion to set aside the service of the summons and complaint upon the defendant.
The facts and issues involved are stated in the order of Judge Stoll, and for the reasons stated therein it is the judgment of this Court that the order appealed from be, and the same is hereby, affirmed.
MR. CHIEF JUSTICE BLEASE, MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE W.C. COTHRAN concur.
In addition to the reasons assigned by Judge Stoll for sustaining the validity of the service of the summons and complaint, the service as made on the defendant was a good one, under the authority of the cases of Metropolitan Life Insurance Company v. Still et al., 140 S.C. 18, 138 S.E., 401, and Dill-Ball Company v. Bailey, 103 S.C. 233, 87 S.E., 1010. In the case first cited, following the rule laid down in the other case, this Court, refusing to upset the service of a summons and complaint, made somewhat irregularly, said the facts were "sufficient to show that the defendant was * * * fully informed of the pendency of the action," and the facts shown answered "all the purposes of a summons." The proof here clearly established that within due time the defendant received notice of the pendency of the action from the service of the summons and complaint made upon his wife.
Furthermore, what the defendant mainly sought was a trial of the action in Lexington County, wherein he claimed was his legal residence. The order of the Circuit Judge granted him what he wished.