Opinion
13002
October 15, 1930.
Before DENNIS, J., Lexington, December, 1929. Affirmed.
Action by Thomas David Carroll against Marion Guerrant Carroll. From orders overruling demurrer, and motion to set aside service of amended summons and complaint, the defendant appeals.
The orders of Judge Dennis are as follows:
This matter comes before me on a demurrer to the amended summons and complaint served on the defendant on the 28th of June instant.
The complaint is demurred to on the ground that the Court is without jurisdiction of either the person of the defendant or the subject-matter of this action. The defendant is a resident of Florida.
Also, on the further ground that another cause of action is pending between the same parties on the alleged cause of action.
Also, that the complaint does not state facts sufficient to constitute a cause of action because it appears from the complaint that the subject is an infant son of the plaintiff and defendant; that he was in the lawful possession of his mother at the time he was taken possession of by the sheriff, and that there was consequently no illegal restraint and a possessory action, and injunction, is an improper remedy for the Court to adjudge the custody of a child, especially between the father and mother.
It appears from the record that Thomas Theodore Carroll, Jr., is an infant son of the plaintiff and defendant. That the defendant mother appeared in this state in the city of Columbia about June 11, of the present year, and forcibly took from the sister of the plaintiff the child, who was then living with its father at his home in this state in the city of Columbia and had been for some months, and was attempting to forcibly take him out of the state, and she was overtaken with him in the town of Swansea, in the county of Lexington, by the sheriff of the county of Lexington, who under certain process took possession of the child and retained him in the possession of the Court until the matter was heard by Judge Ramage, at Saluda, who passed an order directing that the child he held by the sheriff until the further order of the Court.
Upon the question of jurisdiction, the contention of the defendant is that the proceeding by summons and complaint seeking a restraining order is not the proper remedy to adjudicate the possession of an infant child, but that the proceeding under which such judgment may be obtained is one by habeas corpus by which the infant is brought into the Court.
The proceeding by habeas corpus is one in which the person sought to be taken into custody is illegally restrained of its freedom. The remedy by habeas corpus could not apply in this case, according to the allegations of the complaint, for the reason that, when the amended complaint was served, the child was not under illegal restraint, but was technically in the possession of the sheriff.
No authority has been cited to me, nor do I know of any which is to the effect that habeas corpus is the only remedy by which the possession of an infant child can be adjudged.
The objection that there is another cause of action pending between the same parties for the same cause, as the alleged cause of action, as a matter of course, must appear upon the face of the complaint, because there was an original complaint, and the amended complaint must be upon the same cause of action as the original complaint. Demurring counsel contends that, in the amended complaint, the plaintiff seeks to sustain his cause of action by alleging certain facts which do not appear in the original complaint, and therefore the amendment to the complaint, as stated therein, is not permissible under the Code. So far as I see, the amended complaint does not state a new cause of action, but simply states certain facts in addition to those stated in the first complaint to sustain his cause of action, and this is the primary purpose of an amended complaint to state simply additional facts in support of its cause of action to those stated in the first complaint.
The contention of the defendant that the complaint does not state facts sufficient to constitute a cause of action, I do not think is well taken. I am not ready to decide, nor has any authority to that effect been cited me by counsel, that a cause of action does not lie in an ordinary summons and complaint under which the Court can determine the possession of a child as between its mother and father in a case in which there is not alleged illegal restraint, nor am I ready to adjudge that a father and mother in this state under the practice in our Court cannot adjudicate between themselves in an ordinary action at common law the right to the possession of their child.
After due consideration of the argument, I am of the opinion that the demurrer is not well taken and
It is therefore ordered that the demurrer be, and it is hereby overruled.
From the record in this case it appears that a suit was served upon the defendant in the county of Lexington and state aforesaid while she was voluntarily in the state, though she is a resident of the state of Florida, the subject of which is the possession of a child about three years old.
Her return to the rule was heard by Judge Ramage at Saluda, on the 27th of June.
To the summons and complaint was attached a rule requiring her to show cause before Judge Ramage at Saluda, on the 27th of June, why she should not be temporarily restrained from in any way attempting to take possession of the child or in any way interfere with his custody in the possession of the plaintiff.
On June 28, while she was still in the state and temporarily in the city of Columbia, an amended summons and complaint was personally served upon her. On July 19 of the present year, a motion was noticed to be heard at the fall term of Court of the present year to set aside the service of the amended summons and complaint upon the ground that at the time the same was served, the defendant was temporarily in this state as a suitor in answer to a rule to show cause issued in a cause of action then pending in this county on the same cause of action.
It appears from the record that the original summons and complaint was served on June 11, and that the amended summons and complaint was served on June 28, within the twenty days in which she was required to answer and before her answer was served.
I am of the opinion that the service of the amended complaint within twenty days from the service of the original complaint was well within the provisions of the Code (Code Civ. Proc. 1922, § 435) giving the litigant permission to serve an amended complaint at any time previous to the expiration of the twenty days.
The movant having been previously served with summons and complaint on the same cause of action was at the time of the service of the amended complaint already within the jurisdiction of the Court, and it is doubtful if the Code provision as to the service of non-residents coming into the state for the purpose of being present at the hearing of a cause applies to the service of additional process in the same cause of action when the party served was already within the jurisdiction of the Court by the previous service of proper process.
It is therefore ordered that the motion to set aside the service of the amended summons and complaint in this cause be, and the same is hereby, refused.
Messrs. Cyrus L. Shealy, Martin Sturkie and A.C. DePass, for appellant, cite: Actions to settle right to custody of children: 135 Cal., 339; 87 A.S.R., 105; 53 So., 456; 240 N.Y., 429; 40 A.L.R., 937. Best interest of child first consideration: 141 S.C. 119; 139 S.E., 172; 126 S.C. 31; 123 S.E., 501; 125 S.C. 126; 118 S.E., 31; 72 S.C. 18; 84 S.C. 559; 66 S.E., 1049; 74 S.C. 546; 115 S.C. 372. Injunction improper: 1 Civil Code 1922, Sec. 482; 14 R. C.L., 365; 27 S.C. 408; 92 S.C. 347; 32 C.J., 51; 111 S.C. 353.
Messrs. Efird Carroll and Timmerman Graham, for respondent, cite: Action by summons and complaint proper: 29 Cyc., 1602; 6 Rich. Eq., 249. Preliminary injunction proper: 22 Cyc., 740.
October 15, 1930. The opinion of the Court was delivered by
This action, commenced in the Court of Common Pleas for Lexington County, by the service of a summons and complaint, and rule to show cause issued by his Honor, Judge Ramage, June 11, 1929, is an action for the possession and custody of the infant son of the plaintiff and defendant. The said rule so issued required the defendant to show cause before Judge Ramage, June 27, 1929, why she should not be enjoined pendente lite from interfering with the custody of the said infant. The defendant made return to the rule, and after the hearing thereon, Judge Ramage issued an order continuing the temporary injunction until the final determination of the action. Later, June 28, 1929, the plaintiff served on the defendant personally, an amended summons and complaint, which was filed in the cause. Thereafter, within the required time, the defendant served and filed demurrers to the complaint and amended complaint, and, also gave notice of motion to set aside the service of the amended summons and complaint. The motion and the demurrers were heard by his Honor, Judge E.C. Dennis, who, after hearing argument and after due consideration, overruled the same, and issued orders in accordance with his ruling. From the said orders of Judge Dennis, overruling the motion and demurrers, the defendant has appealed to this Court.
In the orders appealed from will be found a clear statement of the pertinent facts alleged and the issues involved in the appeal. The conclusion reached by the Circuit Judge is satisfactory to this Court.
The exceptions are, therefore, overruled, and the orders appealed from affirmed.
MESSRS. JUSTICES COTHRAN, BLEASE and STABLER, and MR. ACTING ASSOCIATE JUSTICE SMITH concur.
I concur upon the authority of Hutson v. Townsend, 6 Rich. Eq., 249.