46 S.C. 9 | S.C. | 1896
The opinion of the court was delivered by
The plaintiff brought action against defendant in trial justice court for Greenville, in this State, to recover the sum of $46.50. The summons, which was served upon the defendant, on the 9th. day of March, 1895, required him “to appear before the trial justice at his office iu Greenville City, on the twentieth day from the service of this summons, exclusive of the day of service, at 11 o’clock A. M., to answer the said complaint, or judgment will be given
I. Because the summons and complaint showed that this court has no jurisdiction.
(a) Because the summons requires the defendant to appear on the twentieth day after the service of the summons, exclusive of the day of service, at 11 o’clock A. M., when he should have had twent}' whole days, exclusive of the day of service, to appear and answer.1’
(b) The plaintiff ought to have required the defendant to account, before he could bring this suit.
II. Because the complaint does not state facts sufficient to constitute a cause of action against the defendant.
After several postponements of the hearing, on the 9th. April, 1895, a hearing was had, at which hearing the defendant interposed his cause of demurrer, as it is set out in the paragraph marked “a.” The trial justice sustained that cause of demurrer and dismissed the complaint, and on an appeal taken therefrom, Judge Aldrich in the Circuit Court sustained the order of the trial justice. From this order of Judge Aldrich the plaintiff now appeals to this court, on the single ground that it was error to sustain the demurrer as to the jurisdiction, when it is shown by the record that the defendant entered an appearance, filed his answer as to the merits, and in his demurrer, in addition to the question of jurisdiction, alleges that the complaint does not state facts sufficient to constitute a cause of action.
We think both the Circuit Judge and the trial justice were in error. No doubt, they relied upon the recent case of Adkins v. Moore, 20 S. E. Rep., 985, as authority for their respective decisions. The case cited did construe subdivision 16 of section 88 of the Code, as amended by the act of December 22,1891, which reads: “When twenty-five or more dollars -is demanded, the complaint shall be served
It is the judgment of this court, that the order of the Circuit Court be reversed, and the cause is remanded to that court for such further action as may be proper.