Smith v. Walke,

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| S.C. | Mar 25, 1895

Lead Opinion

The opinion of the court was delivered by

Mr. Justice Gary.

This action was commenced on the 11th day .of November, 1893, by summons and complaint personally served on the defendant, in Yorkville, S. G. The action was upon a demand for $250, alleged to have been loaned to *383defendant by plaintiff, at Bessemer City, in the State of North Carolina, where both parties to the transaction resided, on the 3d day of April, 1893, the date of the alleged loan. At the hearing, the defendant’s attorney moved to dismiss the action, on the grounds that the plaintiff and defendant, at the time of the contract as to the loan, and at the time of the trial, were residents of the State of North Carolina, and the action being on a simple contract debt, the suit should have been brought in the State of North Carolina. The motion was overruled, and exception duly taken. The presiding judge, in his charge to the jury, reiterated his ruling in overruling defendant’s motion, and from said ruling defendant appeals.

Prior to the commencement of this action, to wit: on the day of July, 1893, an action was commenced by the plaintiff against the defendant for the same cause of action as is herein mentioned. It seems that when the first action came on for trial before his honor, Judge Ernest Gary, and a jury, on the 11th day of November, 1893, the defendant interposed an oral demurrer to the jurisdiction of the court, and that the presiding judge orally sustained the demurrer, and discharged the jury that had been empanelled to try the action. The formal order sustaining the demurrer, however, was not signed by his honor, Judge Gary, until the 14th day of November, 1893. The present action was commenced on the 11th day of November, after the jury had been discharged as aforesaid. The plaintiff gave notice of appeal from the order of Judge Gary, but failed to perfect the same.1

The jury rendered a verdict for the plaintiff for two hundred and fifty dollars, and judgment was entered thereon. The defendant appealed, on exceptions which will be set out in the report of the case.

1 The first, second, and third exceptions relate to the question of the jurisdiction, and will be considered together. A copy of the summons and complaint was served on the defendant at Yorkville, in- this State; the defendant answered the complaint generally, and put in issue the merits of the case; appeared at the trial; offered testimony, and went *384before the jury upon the merits of the case. She unquestionably subjected herself to the jurisdiction of the court, aud these exceptions are overruled. See the case just filed, of Ex parte The Perry Stove Co. in re Phillips & Buttorff Mfg. Co. v. Ray, ante, 176.

2 The fourth exception relates to the pendency of another action. At the time this action was commenced, Judge Gary had orally sustained the plea to the jurisdiction of the court, although the formal order was signed afterwards. Although an appeal was taken from such order, which the plaintiff failed to perfect, it can have no effect in determining this question. See Trimmier v. Trail, 2 Bail., 483. The order of Judge Gary showed that the court did not lawe jurisdiction. Under these circumstances it can not be said that there was another action pending. This exception is overruled.

3 The testimony mentioned in exception 5 was wholly immaterial, and this exception is overruled.

4 It does not appear in the “Case” that the defendant gave the notice of appeal me’ntioned in thesixth exception, and it 'cannot be considered. It is, likewise, overruled.

It is the judgment of this court, that the judgment of the Circuit Court be affirmed.

Gave notice of withdrawal of his appeal. — RepORTER.

Concurrence Opinion

Mr. Chief Justice McIyer.

I concur. I may add, however, that it does not appear from the “Case” as prepared for argument here that any motion was made to dismiss the complaint upon the ground that there was another action pending, nor does it appear that Judge Watts was either requested to charge or did charge the jury upon that point, and hence that question is not properly before us.