Summary
In Mahon v. Burkett, 160 S.C. 48, 158 S.E. 141, an action was instituted in Spartanburg County, South Carolina, against the defendant Burkett and a motor truck, and attachment was had under the statute.
Summary of this case from Weatherford v. RadcliffeOpinion
13103
March 30, 1931.
Before SEASE, J., Spartanburg, September, 1929. Order reversed with directions.
Separate actions by Anne Mahon, by Mary Lipscomb and H.S. Lipscomb against Robert Burkett and another, wherein the damage-feasant truck was attached. From an order refusing to transfer cases to another county for trial, defendants in each case appeal.
The notice, demurrer, and order, directed to be reported, were as follows:
NOTICETo L.D. Jennings, Esq., attorney for the defendants:
Please take notice, that we will, on Saturday, September 7th, 1929, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, move before Honorable T.S. Sease, Judge of the 7th Circuit, at his Chambers at Spartanburg, S.C. in the three above-entitled actions.
First: For an order finally disposing of the first defense set up in each of the answers, which is, in legal effect, a motion by the defendants to change the venue from Spartanburg County to Sumter County on the ground that the defendants are residents of that County, and will seek an order refusing the change of venue and, in effect, changing the venue to Spartanburg County as though the action had been instituted in Sumter County, on the ground that the convenience of witnesses will be promoted by the trial of the cases in Spartanburg County, and that, to require the trial in Sumter County would be substantially to defeat the rights of the plaintiffs, because their means and the means of the numerous witnesses who saw the accident resulting in injury to the plaintiffs are so limited as to render it a practical impossibility for the plaintiffs and their witnesses to appear for trial in Sumter County, and, on the further ground that one of the plaintiffs, H.S. Lipscomb, is aged, in ill health, and so injured by the accident as to make it wholly impossible for him to go to Sumter.
Second: Failing in the above, we will move for an order allowing the plaintiffs to dismiss as to the personal defendants and to proceed with the action in Spartanburg County against the damaged feasant automobile, which did the injury in Spartanburg County, and which was attached and is now held in Spartanburg County.
The motion will be made upon the pleadings and the entire record and the annexed affidavit.
August 31st, 1929.
State of South Carolina,
County of Spartanburg.
Thos. M. Lyles, duly sworn, says he is a practicing attorney at Spartanburg, and of counsel for the plaintiffs in these actions;
That on May 20th, 1929, between ten and eleven o'clock in the morning, he was called over the 'phone and asked to come down near the home of H.S. Lipscomb, on the Union Highway, about a mile south of the city limits, on account of a collision between a motor truck and the automobile in which Mr. Lipscomb and his two daughters were leaving their residence to come to the city, which occurred before their automobile had reached the highway, and, while it was still in the residence drive-way; that he went immediately by automobile and arrived there within a few minutes after the call;
Neither of the machines had been moved from the positions in which they were left after the collision; that the crowd attracted by the collision had not dispersed; that the collision occurred on a paved highway, not more than a mile below the city limits which is a very busy highway and on which numerous residences are situated, being practically a part of the City of Spartanburg, by reason of which the collision and the excessive speed of the truck which left the highway to collide with the automobile were observable by numerous eye-witnesses — especially the unusual speed of the truck as it went from the City of Spartanburg towards Union; the noise of the collision brought many more witnesses on the scene; deponent interviewed many of them immediately after the accident and before the position of the cars was charged, and has the names of others; that they are all residents of Spartanburg County, all material, and he expects to subpoena for trial ten witnesses, in addition to the three plaintiffs; that it would be a practical impossibility to procure their attendance at a trial to be held in Sumter. That Mr. H.S. Lipscomb is advanced in years, was in ill health before the collision, and for some time after the collision was bed-ridden and is not now able to travel so far, nor perhaps will he be.
DEMURRERThe defendants in each of the above-stated cases demur to the moving papers served upon them in the above-entitled causes for a change of venue, on the grounds:
1. That the moving papers do not state sufficient grounds for a change of venue, (a) in that it appears from said notice that said causes are now pending in the County of Spartanburg, and venue cannot be changed from Sumter to Spartanburg County, when neither of said causes has ever been pending in the County of Sumter; (b) that the only ground upon which a change of venue is sought, is "On the ground that the convenience of witnesses will be promoted by the trial of the cases in Spartanburg County," it being submitted that this would not be a sufficient ground for the change of venue, because the statute, Code 1922, Vol. 1, § 382, provides:
"The Court may change the place of trial in the following cases:
"1. When the county designated for that purpose in the complaint is not the proper county.
"2. When there is reason to believe that an impartial trial cannot be had therein.
"3. When the convenience of witnesses and the ends of justice would be promoted by the change."
The motion in these causes is based upon neither of the grounds provided for in the statute, because the plaintiffs would not be entitled to a change of venue upon the ground of the convenience of witnesses, unless by such change the ends of justice would be promoted, and the motion of the plaintiffs is not based upon this ground.
This Court has held, Castles v. Lancaster County, 74 S.C. 512, 55 S.E., 115, that the convenience of witnesses and the ends of justice is one ground, and inseparable.
The defendants respectfully submit that they are entitled to have the motion for change of venue dismissed, and all of the above cases transferred to Sumter County, which is the residence of all of the defendants.
ORDERThese three actions were simultaneously, but separately, instituted by the respective plaintiffs against the same defendants for damages for personal injuries alleged to have been inflicted in an automobile collision resulting from the negligent, reckless and unlawful operation of a motor vehicle on the highway in Spartanburg County about a mile from the City of Spartanburg by the defendant Pinkney, as the agent of the defendant, Burkett. In each case, the alleged damage feasant car was attached by the Sheriff of Spartanburg County, and the car is named and described in the title and in the complaints in each case as a defendant. No dissolution bond has been given and the car is now in the custody of the Sheriff of Spartanburg County. The two personal defendants are residents of Sumter County. They answered, and, as a first defense, set up their residence in Sumter County and challenged the jurisdiction of this Court for any other purpose than a transfer of the case to Sumter for trial.
The plaintiffs thereafter noticed a motion before me for an order finally disposing of the question of law presented by the first defense, which in legal effect, is a motion by the defendants to change the venue from Spartanburg County to Sumter County, and for a further order refusing the change of venue on the ground, "that the convenience of witnesses will be promoted by the trial of the cases in Spartanburg County, and that, to require the trial in Sumter County, would be substantially to defeat the rights of the plaintiffs, because their means, and the means of the numerous witnesses who saw the accident resulting in the injury to the plaintiffs, are so limited as to render it a practical impossibility for the plaintiffs and other witnesses to appear for trial in Sumter County; and on the further ground that one of the plaintiffs, H.S. Lipscomb, is aged, in ill health, and so injured by the accident as to make it wholly impossible for him to go to Sumter."
The theory of the attorneys for the plaintiffs is that the first defense contended in the answer is tantamount to a motion for change of venue with no date fixed for hearing the motion, and that their notice to call up this defense for consideration, in connection with the defense itself, is equivalent to a motion for change of venue by the defendants, which motion was resisted on the ground that the convenience of witnesses will be promoted by the trial in Spartanburg, and that to compel a trial in Spartanburg would amount to a denial of substantial justice.
The attorneys for the defendants challenge the sufficiency of the grounds stated by the plaintiffs in their motion papers, contending that there was no ground stated except that the convenience of witnesses would be served by the retention of the cases in Spartanburg County, and that, to justify the Court in changing or retaining the venue, under the third subdivision of Section 382, it is essential that the ground be stated in the words of the statute — "When the convenience of witnesses and the ends of justice would be promoted by the change."
While not stated in the terms of the statute, a reasonably liberal interpretation of the grounds stated in the plaintiffs' motion papers gives a meaning to these grounds substantially equivalent to, or identical with, the language of the statute. It must be read as asserting that the convenience of witnesses will be promoted, and that substantial justice will be denied by compelling a trial in Sumter County. This can mean no other than that the ends of justice will be promoted by the trial in the County contended for.
The cases are automobile injury cases, and the collision occurred on an important paved highway in Spartanburg County, about one mile from the city limits, in a thickly settled community, and the supporting affidavit filed by the plaintiffs shows that there are at least ten material witnesses, all living in Spartanburg County, whom the plaintiffs intend to subpoena. I am convinced that it will promote the convenience of witnesses and the ends of justice to retain the case for trial in Spartanburg County. Having reached this conclusion, it is my duty, under the case of Moore v. Arthur, 113 S.C. 112, 101 S.E., 640, and of Panama Real Estate Company v. Dime Savings Bank, 115 S.C. 290, 105 S.E., 444, to refuse the change of venue to Sumter County and to retain them for trial in Spartanburg County, and it is so ordered.
The plaintiff's notice was framed in the alternative — seeking to dismiss as to the personal defendants and to proceed against the car in Spartanburg County, in the event they should fail to prevail on the main branch of their motion. The defendants concede that it is proper where the action is wholly in rem to proceed in the County where the car is found, and attached. But, having reached the conclusion that the plaintiffs should prevail on the main issue, the latter branch of the motion becomes immaterial.
Mr. L.D. Jennings, for appellants, cites: Change of place of trial: Code Proc. 1922, Sec. 382; 55 S.E., 115; 86 S.E., 2; 142 S.E., 362.
Messrs. Lyles, Daniel Drummond, for respondents, cite: Refusal to change venue proper: 113 S.C. 112; 115 S.C. 290. Order not appealable: 6 S.C. 313; 54 S.C. 368; 113 S.C. 112; 46 S.E., 317; 38 S.C. 399.
March 30, 1931. The opinion of the Court was delivered by
The above-named persons, Mrs. Anne Mahon, Miss Mary Lipscomb, and H.S. Lipscomb, separately but simultaneously commenced actions against Robert Burkett, Burnett Pinkney, and Chevrolet motor truck, 1929, S.C. License J-2116, Motor No. 835501, in the Court of Common Pleas for Spartanburg County, May 21, 1929, for damages for injuries resulting from the willful and negligent operation by the defendant Pinkney, as agent of the defendant Burkett, of the latter's said truck, on the state highway leading from Spartanburg, S.C. to Union, S.C. near Spartanburg. The damage-feasant truck was attached in each case, and, no dissolution bond being given, has since been held by the Sheriff of Spartanburg County. Within due time the defendants answered in each case, and by their first defense, which is the only part of their answer involved in the appeal, set up that they were residents of the County of Sumter and that the Court of Spartanburg County had no jurisdiction to try the causes and that the cases should be transferred to the County of Sumter for trial. The fact that the defendants were residents of Sumter County, that is the personal defendants Burkett and Pinkney, did not appear upon the face of the complaint. Thereafter the plaintiffs served due notice that they would move before his Honor, Judge T.S. Sease, at Spartanburg, for an order finally disposing of the said question raised in the defendants' answer and, further, to retain the said causes in Spartanburg County for trial. This notice on the part of the plaintiffs, which will be reported with the case, was supported by affidavit as to the matters of fact stated therein. To this notice and motion, which sought to have the cases held in Spartanburg County for trial, the defendants interposed a demurrer, which will also be reported with the case. The matter having been heard by Judge Sease, his Honor issued an order covering the three cases, dated September 14, 1929, refusing to transfer the cases to Sumter County and held the same in Spartanburg County, upon the ground that it would serve the convenience of witnesses and the ends of justice. From this order the defendants have appealed, in each case, to this Court.
As stated, the order issued by Judge Sease was intended to cover the three cases and this opinion is intended to apply in the same way.
Under the view we take of the case it is not necessary to consider all of the questions raised by the appellants, and we do not consider it necessary to discuss at length the order of the Circuit Judge issued in the causes, but deem it sufficient to make a brief reference thereto, and to state in our opinion that his Honor, the Circuit Judge, was in error in not transferring the causes, as to the personal defendants, Robert Burkett and Burnett Pinkney, to Sumter County, the admitted place of their residence, for trial.
There can be no question under the decisions, in this State and in other jurisdictions, that the Court in Spartanburg County had jurisdiction of the defendant Chevrolet motor truck, the property of the defendant Burkett, for as to the truck the action is a proceeding in rem, which may be instituted in the county in which the injury occurred and where the truck may be found. But this proceeding in rem cannot be extended for the purpose of giving to the Court jurisdiction of the owner or driver of the truck in question, by making them parties to the action, where it clearly appears that they are residents of a county other than the one in which the action was instituted. Section 378 of the Code of Civil Procedure 1922, which provides, "if there be more than one defendant, then the action may be tried in any county in which one or more of the defendants to such action resides," is not applicable in this case. This provision of the Code clearly had reference to personal defendants residing in different counties, and therefore the Court of Spartanburg County did not acquire jurisdiction of the owner or driver of the truck in question by reason of the same being attached, seized, and held in Spartanburg County where the alleged injury occurred. According to our view of the law governing the case, so far as the rights of the personal defendants are involved, the Court of the County of Spartanburg had jurisdiction only for the purpose of transferring the causes to the County of Sumter for trial, the place of their residence, and had jurisdiction for no other purpose. Steele v. Exum, 22 S.C. 276; Rafield v. Atlantic Coast Line R. Co., 86 S.C. 324, 68 S.E., 631; All v. Williams, 87 S.C. 101, 68 S.E., 1041, Ann. Cas., 1912-B, 837; Duncan v. Duncan, 93 S.C. 495; 76 S.E., 1099. It appears from the order of the Circuit Judge that his Honor did not pass upon the jurisdictional question, but treated the objection raised by the defendants as a motion by the defendants to change the venue from Spartanburg County to Sumter County, and, it appears, assumed that the Court of Spartanburg County had jurisdiction of the personal defendants, as well as the defendant Chevrolet motor truck. Taking this view of the case, his Honor, after consideration, granted the plaintiffs' motion, retaining the causes for trial in Spartanburg County, upon the ground that it would "promote the convenience of witnesses and the ends of justice." As stated, in our opinion, the Court of Spartanburg County had no jurisdiction of the personal defendants, except for the purpose of transferring the causes, as to them, to Sumter County, the place of their residence, for trial. If his Honor, Judge Sease, had issued such order, the Court of Sumter County could have entertained a motion for a change of venue as to the personal defendants to Spartanburg County upon any of the grounds provided by law, but the Court of Spartanburg County did not have jurisdiction of the personal defendants, except for the purposes above stated, transferring the causes to Sumter County for trial as to them, and could not issue an order binding on them in any other respect. In this connection we call attention to the fact that the Circuit Judge did not pass upon plaintiff's motion to withdraw the actions as to the personal defendants and proceed against the truck in that Court. Of course, there was nothing at the time of the hearing or at this time to prevent the Court of Spartanburg County from going forward with the causes against the damage-feasant truck.
It is therefore the judgment of this Court that the order of his Honor, Judge Sease, be and the same is hereby reversed and the case remanded to the Court of Common Pleas of the said County of Spartanburg with direction that that Court sustain the jurisdictional objection of the personal defendants Robert Burkett and Burnett Pinkney, and by order transfer the cases as to them to the County of Sumter, with the right to the plaintiffs in the causes to move before the Court, the Court of Common Pleas for Sumter County, for an order changing the venue to Spartanburg County, upon the grounds provided by law. It is the further judgment of this Court that the Court of Common Pleas for Spartanburg County retain jurisdiction of so much of the above-entitled cause of action as pertain to an action in rem.
Note: Let the notice served by the plaintiffs, the demurrer, and the order of the Circuit Judge be reported.
MR. CHIEF JUSTICE BLEASE and MR. JUSTICE STABLER concur.
MR. JUSTICE COTHRAN concurs in result.
These three actions were simultaneously but separately instituted by the several plaintiffs against the same defendants, for damages on account of personal injuries alleged to have been sustained in a collision between a truck which belonged to the defendant Burkett and operated by his agent, the defendant Pinkney, and the automobile in which they were riding, near the City of Spartanburg. It was alleged that the collision was due to the negligent, reckless, and unlawful operation of the truck by the driver.
The defendants Burkett and Pinkney were and are residents of the County of Sumter.
I will confine my attention to the case first above stated; what I shall have to say being considered as applied to the other two cases.
At the time of the commencement of the action the plaintiff sued out an attachment and had the truck levied upon by the Sheriff, in whose possession it has since remained.
The case has a very unusual presentation: The personal defendants answered interposing an objection to the jurisdiction of the Court of Common Pleas of Spartanburg County, upon the ground that they were residents of Sumter County where only they could be sued, they appearing for that purpose only.
In September, 1929, after the commencement of the action in May, 1929, and the service of the answer, the plaintiff gave notice of a motion "for an order finally disposing of the first defence set up in each of the answers (the objection to the jurisdiction), which is, in legal effect, a motion by the defendants to change the venue from Spartanburg County to Sumter County on the ground that the defendants are residents of that County, and will seek an order refusing the change of venue and, in effect, changing the venue to Spartanburg County as though the action had been instituted in Sumter County, on the ground that the convenience of witnesses will be promoted by the trial of the cases in Spartanburg County, and that to require the trial in Sumter County would be substantially to defeat the rights of the plaintiffs, because their means and the means of the numerous witnesses who saw the accident resulting in injury to the plaintiffs are so limited as to render it a practical impossibility for the plaintiffs and their witnesses to appear for trial in Sumter County, and, on the further ground that one of the plaintiffs, H.S. Lipscomb, `is aged, in ill health, and so injured by the accident as to make it wholly impossible for him to go to Sumter,' and as an alternative motion `for an order allowing the plaintiffs to dismiss as to the personal defendants and to proceed with the action in Spartanburg County against the damage-feasant automobile, which did the injury in Spartanburg County, and which was attached and is now held in Spartanburg County.'"
The motion of the plaintiff then came on to be heard by his Honor, Judge Sease, who filed an order dated September 14, 1929. In this order his Honor did not pass upon the question of jurisdiction of the Court of Spartanburg County over the personal defendants, a matter directly in issue in the motion of the plaintiff, and in the answer of the defendants, but appears to have treated the objection interposed to the jurisdiction as a motion on the part of the defendants to change the venue from Spartanburg County to Sumter County, a matter that was not then before him, except as it incidentally would follow upon his sustaining the jurisdictional objection. He accordingly held that for the convenience of witnesses the trial had best be had in Spartanburg County, a matter that was not then and could not have been before him, and refused what he considered the motion before him to have been to change the venue to Sumter County. If the Spartanburg Court had jurisdiction of the personal defendants, it had the right to retain that jurisdiction until the defendants upon a proper showing might procure an order changing the venue to Sumter County, a motion that they were not making. If it did not have jurisdiction of the personal defendants, upon so concluding the presiding Judge of the Spartanburg Court could do nothing but sign an order transferring the case for trial to the Sumter Court, Rafield v. R. Co., 86 S.C. 324, 68 S.E., 631. This order could in no sense have been considered as a change of venue, for that assumes that the Court from which the case was transferred to another county had originally jurisdiction. The order transferring the case to Sumter County, which automatically would follow sustaining the objection to the jurisdiction of the Spartanburg Court, would lodge the power to change the venue only in the Sumter Court.
His Honor should have passed upon the jurisdictional objection. It appears, however, that when he treated that objection as a motion by the defendants to change the venue from Spartanburg to Sumter, he assumed that at that time the Spartanburg Court had jurisdiction of the personal defendants, for only in that event could he have passed any other order than one providing for a transfer of the case for trial to the proper county, where alone a motion for a change of venue could properly be made.
This brings me to the question of the jurisdiction of the Spartanburg Court over the personal defendants; upon this issue I do not see how there can be room for argument.
Section 378 of the Code provides that: "In all other cases [than those referred to in the preceding sections, among which the present action does not appear] the action shall be tried in the county in which the defendant resides at the time of the commencement of the action. * * *"
It has been settled by the case of Bank v. Brigman, 106 S.C. 367, 91 S.E., 332, L.R.A., 1917-E, 925; Hall v. Locke, 118 S.C. 267, 110 S.E., 385; Williams v. Garlington, 131 S.C. 289, 127 S.E., 20; Tolbert v. Buick Car, 142 S.C. 362, 140 S.E., 693; Petit v. Wise, 131 S.C. 112, 126 S.E., 400; Ex parte Maryland Ins. Co., 117 S.C. 106, 108 S.E., 260, that an attachment proceeding against an offending automobile is a proceeding in rem and may be instituted in the county in which the injury occurred and where it may be found. We do not think that this very exceptional proceeding, to which the owner, as it has been held, need not be a party, can be so extended by making him a party and abrogating the provisions of Section 378.
In Williams v. Garlington, supra, a similar action was brought in Greenville County on account of a collision in that county; the automobile was there attached; the personal defendants were residents of Laurens County; the order of his Honor, Judge Dennis, from which the defendants appealed was as follows:
"The defendants moved that the action be dismissed or the venue changed to Laurens County; it appearing that all the defendants reside now and did reside at that time in Laurens County. The plaintiff thereupon withdrew all demand for judgment against any of the defendants, and asked to proceed against the car which has been attached as a proceeding in rem. Under the case of Hall v. Locke, 118 S.C. 267, 110 S.E., 385, such an action in rem is approved. While my understanding of attachment is that it is a supplementary proceeding which cannot stand alone, still under that decision of the Supreme Court it seems that in an automobile accident case an action can be maintained against the automobile as an action in rem. The demand for judgment against the defendants having been withdrawn and the proceeding being in rem, the motion to dismiss the action and to change the venue to Laurens County is overruled."
The order was affirmed by this Court upon the ground that the plaintiff having withdrawn any claim for judgment against the personal defendants, this in effect converted the action to one in rem, and the car having been attached in Greenville County, the Court of that county had jurisdiction over the automobile. It seems clearly indicated that if claim for judgment against the personal defendants had been insisted upon, the case would have been transferred to Laurens County.
In Tolbert v. Buick Car, supra, the proceeding was entirely one in rem; the owner was not made a party; the automobile was attached. The Court held that in a proceeding in rem it was not necessary that the owner be made a party.
In the cases upholding the jurisdiction of the Court, it was placed upon the ground that the proceeding was one in rem; no question as to the liability of the owner beyond the value of the car being involved.
His Honor, Judge Sease, specifically declined to pass upon the motion of the plaintiff to withdraw his action so far as the personal defendants were concerned. If he had granted the motion, doubtless under the Williams v. Garlington case the plaintiff might have held jurisdiction so far as his attachment against the truck was concerned. Not having done so, that question is not before this Court.
I think therefore that the order of his Honor, Judge Sease, should be reversed and the case remanded to the Court of Common Pleas of Spartanburg County with direction to sustain the jurisdictional objection of the personal defendants and to order a transfer of the case as to them to Sumter County without prejudice to a motion by the plaintiff in the Court of that county for an order changing the venue to Spartanburg County.
The leading opinion permits the plaintiffs to prosecute in rem, against the car, in the Court of Common Pleas of Spartanburg County, and directs the proceeding against the personal defendants to be transferred to Sumter County. This anomalous situation demonstrates, I think, the fallacy of the Hall v. Locke decision, 118 S.C. 267, 110 S.E., 385, which in my opinion, with the cases which have followed it, should be overruled, and that the entire case should be transferred to Sumter County. I agree fully with the observation of his Honor Judge Dennis in the Williams v. Garlington case, above quoted, which is in line with my views expressed in the Hall v. Locke case.