Cheraw Motor Sales Co. v. Rainwater

The opinion of the Court was delivered by Mr. Justice Fraser. The statement of facts in the case, is: “This action was commenced on January 4, 1921, by the service of affidavit, bond, and warrant of attachment, and purported to' be an action as shown by the affidavit for the purchase price of $375 for a Ford roadster automobile. The appellant answered, and counterclaimed for damages, both for the illegal attachment and for damages for breach of contract of employment. On April 18, 1922, when the case was-called for trial and before the impaneling of a *511 jury, and after due and legal notice had been given by the appellant, motion was made to dismiss attachment; same being refused by his Honor, Judge Mauldin, the motibn being based upon defect in the affidavit and defect in the bond. The, matter came on for trial before his honor, Judge T. J. Mauldin, and a. jury, at the April term of Court at Chesterfield, S. C., on Tuesday April 18, 1922. Under the rulings and charge of his honor, Judge Mauldin, a verdict was rendered for the respondent for the sum of $302.50.” PgEadiNGS “The affidavit, caption and immaterial allegations omitted, is as follows: “ ‘That on the 21st of August, 1920, the Cheraw Motor Sales Company sold and delivered unto the defendant, Maurice Rainwater, one Ford roadster automobile, rebuilt by the plaintiff, for the sum of $375, and at the same time the said defendant executed and delivered to the plaintiff his promissory not for the sum of $375, payable 60 days after date. That the said defendant has paid $100 on said note, and has not paid any other amount, and there is now due and unpaid and owing to the plaintiff on the said note the sum of $275, with interest from this date and 10 per cent, attorney’s fees, as provided for in the said note. That deponent is informed and believes that the said automobile is in the custody of the Sheriff of Chesterfield County, to be delivered by him to the defendant, or in the custody of said defendant, and plaintiff is desirous of attaching said automboile for the purchase money, and for fear that the said defendant may leave the state with the automobile, should attachment not issue forthwith.’ “Bond, caption and immaterial parts ommitted, is as follows: “ ‘Now, therefore, the condition of the above obligation is such that if the plaintiff fails to prove that the attachment be for purchase money, and if the defendant recover judgment in the said case, or the attachment be set aside by order *512 of the Court, and the said Cheraw Motor Sales Company, or sureties, shall pay, or cause to be paid, to the said Maurice Rainwater, his certain attorneys, executors, administrators, or assigns, all costs that may be awarded to the said defendant, and all damages which Maurice Rainwater, the said defendant, may sustain by reason of the attachment about to be issued as aforesaid, then the, above obligation to be void and of none effect, or else to remain in full force and virtue.’ “Answer, caption and immaterial parts omitted, is as follows : “‘For a second defense and by way of counterclaim: That the defendant has paid in full all amounts which he contracted to pay to the plaintiff, and at the time of the seizure of the car under these proceedings had overpaid the plaintiff, more than he had contracted to pay. That the seizure by the plaintiff under these proceedings was done in a willful,' malicious, and unlawful manner, and to the great humiliation and damage of the defendant, and by reason of these proceedings the defendant has been deprived of his property and actually damaged thereby in the sum of $100. “ ‘For a third defense and by way of counterclaim: The defendant alleges that he was employed as foreman of repair shop by the plaintiff, and while so employed had an offer of a better position in a different town, but plaintiff contracted and promised to furnish to the, defendant employment at a stipulated wage, and the said plaintiff in a wilful, malicious, and unlawful manner discharged the said defendant, whereby he is unable to secure employment and has been actually damaged in the sum of $100. “ ‘Wherefore the defendant prays that the complaint be dismissed with costs and that the defendant have judgment against the plaintiff for the sum of $500, both actual and punitive damages.’ “Upon the rendition of a verdict, the appellant noted a motion for a new trial, said motion being refused by his honor, the presiding judge, and at that time moved for dismissal of proceedings, on the ground that summons and com *513 plaint was not served on appellant, this motion also being refused.” I. The first assignment of error is set out in the following extract from the case: “B. F. Pegues, sworn, testified as follows: T am the attorney for the plaintiff in this action, and at the time action was instituted I had in my possession the note upon which this action is based. That note, together with the original papers, was filed in the office of the Clerk of Court by myself but I do not know what has become of it, although I have made careful and diligent search for it. The last that I saw of it was when I put it in the record. Q. Do' you remember whose name appeared on that note as the maker? A. Maurice Rainwater. (Objected to on the ground that the proper foundation has not been laid.) The, Court: He has proved that the note was lost. Mr. Hanna: The legal custodian of the records has not been sworn, to show that the note is lost. The Court: He had access to it, and he says that he cannot find it. (Objection overruled.)’ ” The objection is that the plaintiff had not laid the proper foundation for the introduction of secondary evidence. The execution of the note was not denied and the contents not in issue,. This assignment of error cannot be sustained. II. The defendant offered in evidence page No. 480, Chattel Mortgage Book No. 52. The case does not show anything as to1 what the mortgage book would show. This Court cannot say that the ruling was erroneous. III. The next assignment of error is the refusal to dismiss the proceedings because there was no summons and complaint served. The defendant filed’his answer and tried his case on the affidavit in attachment, and thereby waived his right to his' motion. 20 Ency. Pleading and Practice, p. 1184: “Special Appearance. — When the defendant wishes to interpose an objection to process for defects therein, he should appear for that purpose only, for, as has been shown in another place, a general appearance operates to waive not *514 only all defects and irregularities in process, but also an entire want of process.” IV.The affidavit alleged that the price of the car was $375. The testimony tended to show that the price of the car was $675; $300 paid cash, and the note for $375 was given for the balance of the purchase money. The facts were for the jury. This assignment of error cannot be sustained. V. The next assignment of error is in allowing the plaintiff’s attorney to comment on the fact that the defendant did not go on the stand. This would be error in a criminal case, but not in the civil case. The exceptions as to the insufficiency of the pleadings has been covered. It comes too late after the trial. VI. The counterclaim was properly ■ excluded, as it failed even to allege another contract. The judgment is affirmed. Messrs. Justice Watts and Marion concur. Mr. Citiee Justice Gary did not participate.