Easterling v. Odom

82 S.E. 407, 98 S.C. 171, 1914 S.C. LEXIS 26

• Court: Supreme Court of South Carolina
• Decided: July 15, 1914
• Docket: 8874
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gage.

The action is manifestly for claim and delivery of five head of cattle; the venue was laid in Chesterfield, wherein the cattle had been put to- pasture on defendant’s land. All the parties then and now resided in Marlboro.

Concurrent^ with the issuance of summons and complaint, the plaintiffs demanded the “immediate delivery” of the cattle (Code of Civil Procedure, sec. 357) ; but the sheriff of Chesterfield had not executed that remedy, ñor had .he served the summons and complaint; both were served in Marlboro by “another person not a party to- the action.” (Code Civil Procedure, sec. 183.)

The plaintiffs then moved the Circuit Court to change the venue to Marlboro for the convenience of witnesses. (Code-Civil Procedure, sec. 176), and, also, for direction to the sheriff of Marlboro to seize the cattle in Chesterfield for “immediate delivery.” The motion was granted.

The defendant consented to a chang'e of venue, but dissented from all service of process by another than the sheriff of Chesterfield and from direction for seizure by sheriff of Marlboro.

So practically the appeal malees only two issues, though there are six exceptions. The first is, ought there to' have been exclusive service of process by the sheriff of Chesterfield; the second is, did the Circuit Court have power to direct the sheriff of Marlboro to go into- the pasture of Chesterfield, take the cattle and carry them into Marl-boro.

. On the first issue the provisions of the Code are conclusive against the appellant. Section 183 provides for service by the “sheriff of the county where the defendant may be found, or by any other person not a party to the action.”

The defendant was not “found” in Chesterfield;, he was m Marlboro and was there served by David, who was not a party to the action.

The second issue presents nothing “involving the merits,” and is, therefore, not a matter to be appealed.

Code of Civil Procedure, sec. 11, par. 1.

The plaintiff had a right to- immediate delivery, and the defendant had a rig-ht to' a redelivery. Plow these rights are to be ordinarily enforced, is set out in the Code of Procedure, but that they have not been so enforced is not material on appeal, when the title of the parties in the property is not imperiled.

The judgment of this Court is, that the appeal be dismissed, and it is. so' ordered.