Alexander Bros. v. Jamison

The opinion of the Court was delivered by Mr. Justice Jones. [409] In this action for claim and delivery of personal property, the sheriff failed to file with the clerk of the court the notice and affidavit with his proceedings thereon within twenty days-'after taking the property [410] mentioned therein, as required by section 238 of the Code. Appellant contends that the Circuit Court erred in not dismissing the proceedings for failure to file as aforesaid, and relies upon the cases of Ketchin v. Landecker, 32 S. C., 155, and Doty v. Boyd, 46 S. C., 42. These cases, however, are not applicable, for they relate to the necessity of filing affidavits upon which a warrant of attachment is issued, and are expressly based upon the positive requirements of sec. 250 of the Code, and Rule 69 of the Circuit Court pursuant thereto'. There is no'.penalty attached 2 by statute or rule of Court for failure to file the notice and affidavit referred to in section 238, relating to claim and delivery proceedings, and we know of no authority for holding the proceedings null and void for failure to file as required. 3 2. Appellant next excepts that the 'Court erred in not directing a verdict for the defendant on the ground that the note referred to in the complaint had been assigned by plaintiffs to Kranich & Bach, and' had not been reassigned to plaintiff, but was indorsed to them “for collection only,” and that such indorsement would not authorize this suit in plaintiffs’ name. There was evidence tending to show that the note and the mortgage securing the same on the property in question belonged to plaintiffs, and the Court properly submitted the case to> the jury on the issue raised as to the ownership of the property in dispute. 4 3. Defendant noit having offered any testimony, claimed to be entitled to1 the reply in argument. This claim was properly refused. Defendant by his answer denied all the material allegations of the complaint, and thus imposed upon plaintiff the burden of establishing his cause of action. 4. It is further excepted that the Circuit Court erred in charging the jury in respect to1 matters of fact. This exception is wholly without foundation. The judgment is affirmed.