166 S.E. 626 | S.C. | 1932
November 18, 1932. The opinion of the Court was delivered by
It seems difficult for this case to find a landing field. It was commenced in the Court of Common Pleas for Charleston County where it was first tried, resulting in a directed verdict for the defendants. Upon appeal to this Court, the judgment was reversed, and the cause remanded for a new trial.
The action was commenced January 14, 1929, being a suit in tort for fraud and deceit. The defendant Minnesota-South Carolina Land Timber Company was a foreign corporation, and the defendant Montague was a resident of Charleston County. It is conceded by all parties that the Court of Common Pleas for Charleston County was the proper county for the trial of the cause when the action was commenced and when it was actually tried. It is likewise conceded that the cause of action against Montague abated with his death, and that at the time of the motion for transfer to Dorchester County the foreign corporation was the only defendant.
Upon the foregoing statement of facts, the question of the right to transfer the cause arises as practically the sole issue, and the decision of that issue will be decisive of the appeal.
With much research and refinement of argument, the appellant insists that a transfer of the cause should be ordered. The respondent insists that the Court of Charleston County was, and is, the proper county for trial as a matter of law, and also for the reason that the Circuit Judge found in his decree as a matter of fact that at the time of the commencement of the action the foreign corporation had an agent in Charleston County.
The exact question presented by this appeal is admitted by counsel to be undecided by the Courts of this State, and this has caused an investigation of the authorities independently *21
of the briefs of counsel. The case of Georgia-CarolinaGravel Company v. Blassingame,
As the direct point at issue in the present case was not raised in the Blassingame case, it is apparent that the question was not formally decided. In addition to this, the two causes are materially different. In the Blassingame case the commissioners and directors were not proper parties to the suit from the beginning; Blassingame, a resident of Greenville County, being the only proper defendant. Nor was theBlassingame case ever tried in Beaufort County. The Circuit *22 Court had jurisdiction of the commissioners and directors, it is true, but it could not try the cause against them for the reason that no cause of action existed. Blassingame was the only defendant against whom a cause of action existed, and he was a resident of Greenville County.
In the present case the Circuit Judge found, as before stated, as a matter of fact, that the appellant, at the time the suit was begun, had an agent in Charleston County. Even though this might be sufficient as a fact, not reviewable by this Court, to give the Court jurisdiction, we prefer to decide the case on the jurisdictional ground, owing to the importance of the question involved.
The provision of the Code, § 422, is as follows: "And if there be more than one defendant, then the action may be tried in any county in which one or more of the defendants to such action resides at the time of the commencement of the action."
The first part of this section of the Code refers to cases where there is only one defendant, and provides that in such an event the cause of action shall be tried in the county where the defendant resides at the time of the commencement of the action. The section above quoted says that, if there be more than one defendant, then the action may be tried in any county in which one or more of the defendants resides at the time of the commencement of the action. We do not think too much stress should be laid on the difference of the Code wording of shall and may. In the first provision, there being only one defendant, the action must be tried where he resides. In the second, if there be more than one defendant, the action may be tried in that county where one or more resides. This provision is thus expressed to show a discretionary right of county selection by the pleader for the plaintiff.
The important words, however, in both provisions of this section of the Code, are, "at the time of the commencement of the action." *23
The idea of the appellant appears to be that in the beginning the Court of Charleston County unquestionably had, and exercised, its jurisdiction of the cause, but, upon the death of Montague, the resident defendant, the situation was entirely changed; the Court in Charleston County no longer had that jurisdiction which it was then exercising, and that the effect was as though a new suit were about to be tried with only one defendant, and that defendant a foreign corporation with neither officers, agents, or business in Charleston County. To sustain this position, the appellant cites several authorities; the more important ones being now considered. We may say that no one of them is directly in point.
The case of Hodge v. Woodmen of the World,
Reference is also made to the case of City of Sumter v.U.S.F. G. Company,
We do not think that any of the cases cited or decided in this State are sufficient to change the direct wording of the statute. As is said in Ware v. Henderson,
In Strickland v. Strickland,
In 7 R.C.L., page 1045, it is said: "After a Court once acquires jurisdiction of the person and subject-matter, the death, removal from the county, or resignation from office of one of the defendants will not abate the suit, and the Court will have power and authority to proceed to final judgment or decree."
If the jurisdiction of the Court be not fixed as of the commencement of the action, a suit fraught with great confusion can well be imagined. Let us suppose an action for a joint tort be commenced in Charleston County against a resident of that county and residents of several neighboring counties. Before trial the Charleston resident dies, and the action did not survive. Each of the non-residents would make application to the Court for a transfer of the cause to his county; these applications being made without priority as to time. The provision of the Code, before set out, would no doubt prevent a most difficult question arising for decision by the Circuit Court.
Again we may well suppose a suit for a joint tort against a foreign corporation, which had no officer, agent, or business in this State, and against a resident defendant. The resident defendant dies. If the place of trial is to be determined by the residence of the sole defendant at the time of trial, as contended by the appellant, we fear the case would never be tried.
Several different questions are discussed in the brief of the appellant, and they have all been considered. We are, however, *26 of the opinion that the Court of Charleston County has not lost jurisdiction to try the case.
Judgment affirmed.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.