Mahon v. Burkett

The opinion of the Court was delivered by Mr. Justice Carter. *55 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 Spartan-burg. 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 Plonor 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 *56 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 *57 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 pur-' pose 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 *58 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 S'ease, 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: Ret the notice served by the plaintiffs, the demurrer, and the order of the Circuit Judge be reported. Mr. ChiEE Justice BeEase and Mr. Justice StabeEr concur. Mr. Justice Coti-iran concurs in result.