Whisonant v. Belue

The opinion -of the Court was delivered by Mr. Justice Fraser. The agreed statement in the case reads: “This action was commenced by the plaintiffs on the 7th day of- April, 1923, by the service of summons, complaint, and order upon the defendants, as shown by the pleadings set out in the case. The nature of the action being an issue, the pleadings are set out in full. A bond was'attached to original complaint, but no copy served on defendant, but the complaint was verified. “On the day required by the order or rule to show cause, to wit, April 12th, the attorneys for the defendants appeared and made a written return objecting to the jurisdiction of the Court and the method of trial, as shown by the return printed in the case. “No affidavits or copies of affidavits were served with the summons and complaint, but on April 10th the attorneys for the defendants received by mail alleged copies of affidavits, numbered herein from 1 to 13 inclusive. The original of No. 5,-purporting to be signed by D. A. Thompson, filed in the clerk’s office, fails to show that D. A. Thompson signed the same. “At the call of the rule before the judge at Spartanburg, S. C., on the night of April 12, 1923, the defendant’s *492 attorneys filed the written objections, and protested against the trial of the cause on its merits, claiming the usual rights in civil actions of going to trial on the complaint and answer, and having the testimony of witnesses taken in open Court, to give the defendant the right of civil action in the nature of an action of quo warranto under section 466 of the Code of Civil Procedure 1912. “His Honor, after argument, construed the action as a proceeding for a writ of certiorari, holding that the complaint answered as a petition; that he had authority to try the cause on affidavits; and that it was not necessary that the plaintiffs should have served the affidavits on the defendants at the commencement of the action, since the complaint apprised the defendants of the fact that plaintiffs had such affidavits, etc. “Upon the Court so ruling, defendants’ attorneys withdrew from further participation, except as mere auditors. “His Honor thereupon proceeded with the trial of the cause on the merits, having allowed the plaintiffs at the outset of the hearing to amend their complaint, and allowed the introduction of additional affidavits of which defendants had no notice, and which are referred to in the case as Nos. 14, 15, and 16, and 17. “On April 24, 1923, his Honor filed an order in the cause, which is set out in the case. From this order and all rulings of the Court the defendants gave due notice of intention of appeal.” The first and only question proper to be considered, in the view this Court takes of this case, is the question of jurisdiction. If the Court had no jurisdiction, any other findings are a nullity. This is an action and not a proceeding in certiorari, and the defendants had the right to be tried in Cherokee County, and the Court had no jurisdiction in Spartanburg county to try the case on its merits. The respondents claim that it is a mere question of names and not *493 material. This cannot be sustained. The determination of the nature of the proceedings determined the place of trial, and also the method of trial, and both are substantial rights. If the proceeding were called certiorari, it would not save this case from reversal, as certiorari is heard on the record below, and this case was tried on the record supplemented by the petitioners. The judgment is reversed, and the case is remanded to Cherokee County for trial. Messrs. Justices Watts, Cothran and Marion concur. Mr. Chief Justice Gary did not participate.