40 S.C. 520 | S.C. | 1894
The opinion of the court was delivered by
The plaintiff instituted his action against the defendant in the Court of Common Pleas for York County, in this State. The summons was dated the 2d day of February, 1893, and filed in the office of the clerk of said court on that day. The complaint was dated the 2d day of February, 1893, but was not filed in the office of the clerk of said court until the 21st day of February, 1893. On the 1st day of February,
On the 16th day of February, 1.893, the defendant, by its attorneys, gave notice, that for the purpose of moving to set' aside the service of the summons upon the defendant, it would appear before Judge Wallace, at Yorkville, South Carolina, at 10 o’clock, on the 3d day of April, 1893, or as soon thereafter as counsel could be heard, and that such motion would be based upon the grounds, that the defendant upon whom service is pretended to have been made is not a resident of this State, and has no agent or officer residing in this State upon whom such service could have legally been made; and further, notice was given that the affidavits upon which such motion would be made would be furnished plaintiff on or before 3d day of April, 1893. On the 20th day of March, 1893, the defendant duly served upon the plaintiff an affidavit made by T. L. Black, wherein it was set forth that said Black was not the agent of the defendant railroad company or an officer of the same on the 3d day of February, 1893, when an attempt was made by plaintiff to serve a summons upon him in the pending action as an agent or officer thereof, and the deponent is not now, and was not then, an officer, agent, secretary, or treasurer of defendant railroad company.
Such motion to set aside the service of the summons was duly
From this order the defendant has duly appealed, and submits that the Circuit Judge erred in six particulars: 1st. In ruling and holding that the service of the summons on James B. Pace, as a director of the defendant, at Richmond, Virginia, was sufficient service upon the defendant, and is sufficient to bring the defendant into court. 2d. In ruling and holding that the order for publication and service was regularly obtained and made, even though the complaint was not filed until after the summons was filed and order for publication obtained. 3d. In not ruling and holding that the courts of the State could only obtain jurisdiction of the person of a non-resident by personal service within the State or by voluntary appearance of the non-resident, within the State. 4-th. In not ruling and
It is the judgment' of this court, that the judgment of the Circuit Court be reversed, and the cause be remanded to the Circuit Court, with directions to that court to pass an order setting aside the attempted service of the summons in the action at bar.