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In Anderson v. Anderson, 198 S.C. 412, 18 S.E.2d 9 (1941), this Court held that a notice of appeal was not a "process" within the meaning of § 15-9-1030, supra, so as to prohibit service on the attorney in lieu of opposing party.
Summary of this case from City of Orangeburg v. EdwardsOpinion
15343
December 15, 1941.
Before LIDE, J., Horry County, May, 1941. Appeal dismissed and judgment affirmed.
Proceeding by S.D. Anderson and Gussie Anderson, as executor and executrix of the last will and testament of A.D. Anderson, deceased, for probate of the will, opposed by Marsden Anderson and others. The Probate Court adjudged that the will was void, and an appeal was taken to the Court of Common Pleas. From the judgment of the Court of Common Pleas refusing a motion to dismiss the appeal, Marsden Anderson and others appeal.
The Order of Judge Lide, required to be reported, follows:
This matter comes before me on a motion in behalf of the heirs-at-law of A.D. Anderson, deceased, for an order dismissing the appeal herein from the decree of the Judge of Probate for Horry County, dated July 15, 1940, adjudging that the instrument of writing dated October 8, 1935, purporting to be the last will and testament of A.D. Anderson, deceased, is null and void and of no force and effect. The motion is based upon the ground that no service of a copy of the grounds of appeal was made upon the adverse parties; or any of them, as required by Section 230, Code of 1932, and hence that the Court of Common Pleas has no jurisdiction to hear any appeal herein. Attached to the notice of motion is a joint affidavit signed by the movants to the effect that no copy of the grounds of appeal has been served upon any of them, and that no notice of appeal or intention to appeal from the Judge of Probate's decree has been served upon any of them.
The motion having been duly marked heard in open Court by consent of counsel for the respective parties was argued before me on May 9, 1941, and thereafter counsel for the movants filed a very full brief on the subject involved.
It is quite true that Section 230, Code of 1932, does say with reference to appeals to the Circuit Court from the Probate Court that the grounds of appeal shall be filed in the office of the Probate Court "and a copy thereof served on the adverse party, within fifteen days after notice of the decision appealed from." While such service was not made on the heirs-at-law or any of them personally it was made on their attorneys who had represented them in the proceedings in the Probate Court and who are now representing them in the instant motion before me. Service was accepted by E.S.C. Baker, Esquire, as one of the attorneys for these parties, of the notice and grounds of appeal, the following being an exact copy of this acceptance of service:
"Service accepted and copy retained this 23rd day of July, 1940.
"E.S.C. Baker ____________
"Attorneys for Mrs. Sallie Booth, Miss Lillie Anderson, Marsden Anderson, Mrs. Lula Cooper, Mrs. Lottie Allen, Alton Anderson, and Corbie Moore, heirs at law of A.D. Anderson, deceased. "H.E. Bourne "Probate Judge for Horry County, S.C."
It will be observed that there was a blank in this acceptance, which was for the signature of E.J. Sherwood, Esquire, the other attorney, but it appearing that he was away at the time a copy of the papers was left at his office, and there is an affidavit to that effect in the record.
The contention of counsel for the movants, which they urge with much earnestness and ability, is that service upon the attorneys is not in compliance with the provisions of Section 230. But it seems to me that after parties have been brought into Court and are represented by an attorney or attorneys-at-law, service upon such attorney or attorneys would be deemed in legal effect service upon the adverse parties. One of the significant features of our whole judicial system is that parties litigant may be, and usually are, represented by attorneys learned in the law, and these attorneys by virtue of the very name of their office stand for and in the place of their clients. An attorney is the alter ego of his client, insofar as the case is concerned.
And I think that Section 452, Code of 1932, recognized this principle, and that Section 230 should be construed in connection with it. Section 452 is as follows: "Where a party shall have an attorney in the action, the service of papers shall be made upon the attorney instead of the party."
It is clear, of course, that such a provision is applicable only after the action has been commenced and the parties brought into Court. Hence it is properly provided in Section 453 that this and other provisions in that chapter shall not apply to the service of a summons or other process. But I do not think it can be soundly said that a notice of appeal is a process within the meaning of this section. Royal Exchange Assurance v. Bennettsville C. Railroad Co., 95 S.C. 375, 79 S.E., 104. And Blackstone says that process is "the means of compelling the defendant to appear in court."
Counsel for the movants, however, call attention to the fact that Section 781 relating to appeals from the Circuit Court to the Supreme Court provides for service of the notice of appeal on "the opposite party or his attorney." But the mere fact that this section makes specific reference to service on the attorney does not substantially affect the conclusion above suggested for legislative Acts are sometimes explicit and sometimes implicit.
While not exactly in point, but as tending to throw a side light upon the question before the Court, reference may be made to the interesting case of Muldrow v. Jeffords, 144 S.C. 509, 142 S.E., 602, 607. This case involved the question of will or no will, and the attorneys there did the quite unusual thing of waiving any trial of the matter before the Probate Court, so that they might take the case directly to the Court of Common Pleas; and their action in so doing was sustained by the majority opinion of the Supreme Court, from which I quote the following: "They agreed to waive the trial before the probate judge and to carry the case upon his certificate to the court of common pleas, and we think that this stipulation entered into by the attorneys representing all parties who were entitled to be heard in that proceeding, should be recognized as equivalent to an appeal from the probate court." (Emphasis added.)
But even if it should be determined that Section 230 cannot be construed to mean that service on an attorney is in legal effect service on the adverse party, it would by no means follow that the service in the instant case was invalid. Mr. Baker, a competent, experienced and trustworthy attorney-at-law, accepted service as one of the attorneys for the heirs-at-law of A.D. Anderson, deceased. It is true, the word "as" is not used but the names of the heirs are given below his signature, and it is quite obvious that his acceptance was in their behalf. The acceptance was without qualification, and I think it should be given full force and effect, especially in view of the fact that not one of the heirs-at-law in question has in any wise repudiated the authority of Mr. Baker to act for them in the premises. Their affidavit, which is attached to the notice of motion, while it denies that any service has been made upon them, in no wise questions the authority of their attorneys, Messrs. Baker and Sherwood, in any respect whatever.
It seems to me that the very recent case of Thornton v. Atlantic Coast Line Railroad Co., 196 S.C. 316, 13 S.E.2d 442, is quite apposite here, although not precisely in point in all respects. It was there held that although an order nisi granted a new trial unless the plaintiff should remit a certain part of the verdict, and the remission was actually signed by the plaintiff's attorneys only, the same was valid, because the attorneys for the plaintiff would be presumed to have authority to make such remission.
It may also be of interest to observe that in the case of Sullivan v. Susong, 40 S.C. 154, 18 S.E., 268, the Court sustained an acceptance of service of the original process, to wit, the summons, although it was signed by an attorney only. The form of acceptance there was: "W.C. Benet, attorney for Susong Company., defendants." The Court brushed aside the technical objection that it should have been signed in the names of the defendants, or each of them, per Mr. Benet. It is quite true that the Court properly held that the general authority of an attorney does not include the acceptance of service of a summons that being the original process to bring the parties into Court, but that such authority would have to be special, and it was found from the evidence that Mr. Benet had such special authority. But it will be observed that the Supreme Court quotes with apparent approval an excerpt from the order of the Circuit Judge containing among other things: "That Mr. Benet had the authority to do what he did, is presumed." (Emphasis added.)
I am, therefore, of the opinion that the Court of Common Pleas has jurisdiction of the appeal, and that the motion to dismiss the same should be overruled and refused. And it is so ordered.
Mr. E.J. Sherwood and Mr. E.S.C. Baker, both of Conway, for appellants, cite: As to jurisdiction: Sec. 230, Code 1932; Sec. 452, Code 1932; Sec. 796, Code 1932; Sec. 781, Code 1932; 20 S.C. 500; 160 S.C. 158; 158 S.E., 264; 113 S.C. 270; 102 S.E., 285; 121 S.C. 366; 113 S.E., 483; 72 S.C. 387; 51 S.E., 914; 125 S.C. 115; 118 S.E., 37; 56 S.C. 562; 35 S.E., 220; 15 S.C. 414; 14 S.E., 2d 897; Sec. 954, Code 1932; 2 R.C.L., Sec. 86, p. 109; 149 S.C. 69; 146 S.E., 677; 144 S.C. 509; 142 S.E., 602. As to construing Code: Secs. 230, 452, Code 1932; 25 R.C.L., Sec. 250, p. 1010; 25 R.C.L., Sec. 251, p. 1011; 25 R.C.L., Sec. 281, p. 1056; 56 S.C. 173; 34 S.E., 73; 25 R.C.L., Sec. 282, p. 1057; 1 Bay, Star Page, 354. As to error: 95 S.C. 375; 79 S.E., 104; Sec. 453, Code 1932; 12 Rich. Eq., 196. As to waiver of process: 40 S.C. 154; 18 S.E., 268.
Mr. F.A. Thompson, Mr. C.B. Thomas and Mr. J. Reuben Long, all of Conway, for respondents, cite: As to process: Sec. 453, Code 1932; Sec. 230, Code 1932; Sec. 452, Code 1932; Sec. 443, Code 1932; Secs. 444-446, Code 1932; 95 S.C. 375; 79 S.E., 104; Sec. 448, Code 1932; Sec. 456, Code 1932; 53 S.C. 155; 31 S.E., 1; 128 Am. St. Rep., 877; 15 Ann. Cas., 216; 87 S.C. 523; 70 S.E., 163; 23 Enc. of Law, 160; 144 S.C. 509; 142 S.E., 602. As to personal service: 160 S.C. 158; 158 S.E., 264; Sec. 8813, Code 1932; Sec. 796, Code 1932; Circuit Court Rule 28.
December 15, 1941. The opinion of the Court was delivered by
A paper purporting to be the last will and testament of A.D. Anderson, deceased, was admitted to probate in common form in the Probate Court of Horry County. Within due time, S.D. Anderson and Gussie Anderson, who were named in the said paper as executor and executrix, were required by the Probate Court to have the same proved in due form of law.
To the petition that the purported will be proved in due form of law, the appellants herein served their answer, in which they denied that the said paper was the last will and testament of the said A.D. Anderson.
The case was heard in the Probate Court, which passed its decree dated July 15, 1940, adjudging and decreeing that the said written instrument, dated October 8, 1935, purporting to be the last will and testament of A.D. Anderson, deceased, was null and void, and of no force and effect.
An appeal was taken to the Court of Common Pleas, from the order of the Probate Court aforesaid, which came on to be heard before the Honorable L.D. Lide, Judge of the Twelfth Circuit, then presiding, who filed his order, dated May 30, 1941, refusing the motion to dismiss the appeal.
The order of Judge Lide fully sets forth the history of the litigation, and is entirely satisfactory to this Court.
Let this order be reported as the judgment of this Court.
Appeal dismissed and judgment affirmed.
MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES and MR. ACTING ASSOCIATE JUSTICE G. DUNCAN BELLINGER concur.