| S.C. | Jul 13, 1901
July 13, 1901. The opinion of the Court was delivered by On the 2d day of November, 1899, the defendant was served with the following summons:
"State of South Carolina, county of Greenville. By G. W. Nicholls, Esq. To W.H. Irvine, defendant: Complaint having been made into me by J.A. Baker and W.C. Baker that you are indebted to them in the sum of $100 on account of damages for wrongfully taking from their possession a certain dark horse mule belonging to them jointly, seizure made October 30th, 1899. This is, therefore, to require you to appear before mein my office in Athens, S.C. on the twenty-first day from service of this summons, at 12 o'clock M., to answer to the said complaint, or judgment will be given against you by default. Dated 2d day of November, A.D. 1899. G.W. Nicholls, (seal) Magistrate. Blythe Blythe, Plaintiff's attorneys."
The cause was called for trial on 23d day of November, *116 1899, and on motion the trial was postponed until the 7th day of December, 1899, on which latter day the magistrate gave judgment against the defendant for $65. An appeal was duly taken from said judgment to the Court of Common Pleas for Greenville County, and in that Court the cause was placed on the calendar of said Court for trial at the November term, 1900, of said Court; where upon at the call of said cause in the said Court of Common Pleas the defendant made the motion of which due notice had already been given to wit:
"You will take notice that upon the opening of the Court of Common Pleas for the said county and State, on Friday, November 30th, 1900, in the Court House, Greenville, S.C., at 12 o'clock, or as soon thereafter as counsel can be heard, we will move his Honor, the presiding Judge, for an order vacating the judgment in the above entitled cause upon the following grounds:
"1. That the magistrate, to wit: G.W. Nicholls, Esq., who rendered the said judgment, was without jurisdiction of the person of this defendant or of the cause of action set forth in the summons, and that said judgment is, therefore, a nullity. The said W.H. Irvine, at the time the said action was commenced and judgment rendered, was and now is a resident of Greenville township, county and State aforesaid, and the said magistrate was not at that time a magistrate for Greenville township, but was a magistrate for Bates and Paris Mountain ship townships, and under the law then in force he have no jurisdiction of this defendant residing outside of his territorial limits.
"2. Because it appears that the court had no jurisdiction of the cause of action sued on, the premises upon which the alleged distress for rent was made being situated at that time and now in Greenville township, and the said magistrate residing in Bates township, and the cause of action sued on being for damages which the plaintiffs contend they sustained by reason of such distress, which they allege was unlawful. *117
"You will further take notice that the said motion will be heard upon the record in said case, which is now on file in the clerk's office, by reason of the appeal taken by the defendant in said cause, and the return of the magistrate for the purposes of the said appeal, and the original record sent up in consequences thereof; also, upon the affidavits which were previously served upon you in support of the previous motion given to dismiss the said appeal for want of jurisdiction; upon the affidavit of W.H. Irvine hereto attached, and such other affidavits as may in the meantime by served upon you, and the entire record and proceedings in the said cause, reference to which, for the purposes of this motion, is hereby craved.
"State of South Carolina, county of Greenville. Personally comes W.H. Irvine, who, upon oath, says that he is the defendant in the above entitled cause; that the defendant was sued in the said case before G.W. Nicholls, Esq., magistrate, for damages, the plaintiffs alleging that the defendant wrongfully took from their possession certain property mentioned in the said complaint; that at the time the said action was instituted as well as snow, this defendant was a resident of the city of Greenville, township of Greenville, county and the State aforesaid; that at the time the said action was instituted and judgment rendered, the said G.W. Nicholls, Esq., the magistrate who rendered and said judgment, was a resident of Bates township, county and State aforesaid, premises; that the acts out of which plaintiffs' alleged cause of action arose were all performed in Greenville township, county, and State aforesaid; and this dependent alleges that plaintiff's cause of action, if any, also arose in the said township. *118 Sworn to and subscribed before me, this 26th day of November, 1900. W.H. Irvine. J.A. McCollough, Notary Public S.C."
When the matter of jurisdiction came on to be heard before his Honor, Judge Aldrich, he passed the following judgment:
"The defendant in the above case having moved to vacate the judgment in the case herein mentioned upon the grounds stated in the above notice of motion; and after hearing affidavit of W.H. Irvine support of said motion, which affidavit was not converted on the hearing before me, and after argument of counsel, I find as matter of fact:
"1. That the magistrate who rendered the judgments in the aforesaid cases did not reside in nor was he a magistrate for Greenville township.
"2. That the defendant therein, W.H. Irvine, was a resident of Greenville township, and the causes of action sued on also arose in that township.
"I conclude as a matter of law, therefore, that said magistrate was without jurisdiction to render the said judgments, and the same are, therefore, null and void, and I so adjudge. The summons and complaint in each of the said cases are hereby dismissed and the judgment vacated. By consent of counsel, the motions in each of the aforesaid cases were heard by consent together."
The plaintiffs then appealed on the following grounds:
"1. Because the Circuit Judge erred in holding that because the magistrate who rendered the judgments in these cases did not reside in and was not a magistrate for Greenville township, and because the defendant, W.H. Irvine, was a resident of Greenville township, and the cause of action sued on also arose in said township, that, therefore, the said magistrate was without jurisdiction to render said judgments, and the same are, therefore, null and void.
"2. Because sec. 23, art, V., of the Constitution of 1895, given magistrates jurisdiction throughout their respective counties in civil cases, such as are now before the Court, and *119 this provision being inconsistent with the said sec. 863, Revised Statutes, said section is no longer of force, although it has never been repealed, and the Circuit Judge erred, therefore, in vacating the judgments rendered in these cases, and dismissing the actions."
It seems to us that the two grounds of appeal raise but a single question, viz: Whether by the terms of the Constitution adopted in the year 1895, there is either a limitation upon the jurisdiction of magistrates, or a power conferred upon the General Assembly of the State to confine the jurisdiction of magistrates to certain defined a territorial limits; for if either of these is true, and that power has been exercised, then clearly a magistrate appointed for Bates and Paris Mountain townships, in Greenville County, would have no jurisdiction of try a defendant who did not reside in either one of such townships, but who actually resided in the township within which the city of Greenville is located. Let us see, therefore, if the Constitution by its own terms confined magistrates within the limits of the township or townships for which they were appointed. Sec. 21, of art. V., of the Constitution provides as follows: "Magistrates shall have jurisdiction in such civil cases as the General Assembly may prescribe: Provided, Such jurisdiction shall not extend to cases when the value of the property in controversy, or the amount claimed, exceeds one hundred dollars, or to cases where the title to real estate is in question, or to cases in chancery * * *" The only limitation upon the jurisdiction of magistrates here pointed out, after laying down the cases cognizable by them, is the declaration that "Magistrates shall have jurisdiction in such civil cases as the General Assembly may prescribe" (italics outs). Section 23, of the same article (V), of the Constitution of 1895, provides: "Every civil action cognizable by magistrates shall be brought before a magistrate in the county where the defendant resides" * * * The Constitution was in this section laying down the requirement that no defendant should in a civil case be required to appear in such action except in *120
the county of his residence, to the end that a magistrate of any other county in this State than that of the defendant's residence, should not exercise any power to try the case against such defendant. We do not think that the language in this section last quoted was intended to give magistrates appointed for a particular county in this State jurisdiction to hear civil cases against a defendant in utter disregard of any division by the General Assembly of the territory of a county into certain well defined territorial limits. We do not find, however, any positive recognition of such territorial divisions of a county, so far as the jurisdiction of the magistrates are concerned, but we do find that power is vested in the General Assembly to do so. Wherever there is a grant of power to the General Assembly to do certain acts by the Constitution itself, the exercise of such power by the General Assembly is legitimate. We find by sec. 863 of the Revised Statutes of this State: "* * * In Greenville County there shall be seventeen (afterwards reduced to ten) trial justices, one to each township thereof, except the township of Greenville, and it shall have two. Each of said trial justices shall have jurisdiction of all matters properly triangle in courts of trial justices for the township in which they reside." There is a wide distinction between the cause at bar and the case of Jones v.Brown,
the jurisdiction for magistrates, provides: "Every civil action cognizable by magistrates shall be brought before a magistrate in the county where the defendant resides;" and as we have seen that by sec. 21, of art. V., the General Assembly was given the power to the "prescribe" the jurisdiction in civil cases to be exercised by magistrates, and this power the General Assembly has not exercised as to Greenville County, no such law exists. The Circuit Judge was in error, therefore, in denying jurisdiction to try the cause to the magistrate of Bates and Paris Mountain townships of Greenville County. Inasmuch, however, as the question of jurisdiction operated as a stay upon the trial of the grounds of appeal of the defendants, we will send the cause back to the Court of Common Pleas for Greenville County, with direction to pass upon the said grounds of appeal presented by the defendant.
It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court to hear and determine the questions presented by the defendant on his appeal from the judgment of the magistrate.