Jenkins v. Atlantic Coast Line R. R.

66 S.E. 409, 84 S.C. 343, 1909 S.C. LEXIS 271

Opinions

The opinion of the Court was delivered by

Mr. Justice Gary.

The following statement is set out in the record: “This is an action to recover the statutory penalty of $50 for not settling claim for loss of fourteen barrels of flour, shipped from Evansville, Ind., to the plaintiff at St. Charles S. C., $52.50. Defendant demurred to the complaint on the ground, among others, that the action for the penalty should have been united in the suit to recover the value of the flour, and defendant demurred to the complaint on the further ground that it did not state facts sufficient to constitute a cause of action.”

The magistrate overruled the demurrer, whereupon the defendant appealed to the Circuit Court. That Court dismissed the appeal, and the defendant appealed to this Court upon the following exceptions:

“Because his Honor, the Circuit Judge, erred in not sustaining the first ground of appeal, ‘in holding that the facts stated in the complaint, which was a separate suit for the penalty in this case, constituted a cause of action.’

“Because his Honor erred in not sustaining the second ground of appeal, ‘Because said magistrate should have held that no penalty had accrued, therefore, no cause of action for said penalty had accrued at the time the suit was commenced, the suit for the loss of the freight, on which the penalty was claimed, having been started simultaneously with the suit for the penalty.’

“Because his Honor erred in not sustaining the third ground of appeal, ‘Because said magistrate erred in not holding that under’the act of 1903, the penalty should have been sued for in the same action, the said act providing that unless the plaintiff recover “in such action” the full amount of the claim “no penalty should be recovered.” ’ ”

1 Sections 2 and 4 of the act of 1903, page 81, are as follows : “That every claim for loss of, or damage to property, while in the possession of such common carrier, shall be adjusted and paid within forty days; in case of shipments wholly within this State, and within ninety days, in case of.shipments from without this State, after the filing of such claim with the agent of such carrier at the point of destination of such shipment: Provided, That no such claim shall be. filed until after the arrival of the shipment, or of some part thereof, at the point of destination, or until after the lapse of a reasonable time for the arrival thereof. In every case such common carrier shall be liable for the amount of such loss or damage, together with interest thereon,. from the date of filing of the'claim therefor, until the payment thereof. Failure to adjust and pay such claim, within the periods respectively herein prescribed, shall subject each common carrier so failing to a penalty of fifty dollars for each and every such failure, to be recovered, by any consignee or consignees aggrieved, in any court of competent jurisdiction: Provided, That unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered, but only the actual amount of the loss or damage, with interest as aforesaid.”

Sec. 4. “That causes of action for the recovery of the possession of the property shipped, for loss of damage to, and for the penalties herein provided for, may be united in the same complaint.”

The words of section 2, “That unless such consignee or consignees recover in such action the full amount claimed, no penalty shall be recovered,” as well as the language of section 4, show beyond question that the claim for the loss of the property and that for the penalty can be united in the same complaint.

But section 4 also recognizes that, the claim for the loss of the property and the claim for the' penalty constitute two separate and distinct causes of action, upon which suit can be brought in separate complaints, and it was for this reason that permission was granted the plaintiff to unite the two causes of action in one complaint if he so desired.

The exceptions raising this question are, therefore, overruled.

The next question that will be considered is, whether the cause of action, for the penalty, had accrued at the time this action was commenced.

When a common carrier fails to adjust and pay the consignee’s claim, within the time specified by the statute, it subjects itself to liability; 1st, for the amount of the loss or damage, together with interest thereon, from the date of- the filing of the claim therefor, until the payment thereof: 2d. For a penalty of fifty dollars for failure to adjust and pay the claim, within the period prescribed by the statute, provided the consignee recovers the full amount thereof.

The plaintiff may bring his action for the penalty at the time he commences suit for the loss of the property, but judgment can not be rendered in his favor until he has recovered the full amount claimed, on the cause of action, for the loss of the property. This condition is anomalous, but the statute so provides.

The exception raising this question is also overruled.

2 At the conclusion of his argument, the appellant’s attorney raised the question of jurisdiction, on the ground that St. Charles, the point of destination, is not in Sumter, but in Lee county.

The question was presented for the first time in this Court.

The defendant appeared generally, at all the trials, and contested the case upon the merits.

Section 31, article V, of the Constitution, provides: “Magistrates shall have jurisdiction in such civil cases, as the General Assembly may prescribe: Provided, Such jurisdiction shall not extend to cases, were * * * the amount claimed, exceeds one hundred dollars.”

Section 33, article V, of the Constitution, contains the provision that every “civil action cognizable by magistrates shall be brought before a magistrate in the county where the defendant resides.”

Section 71, of the Code of Procedure, provides: “Magistrates shall have civil jurisdiction in the following actions : * * *. 3. An action for a penalty, fine, or forfeiture, where the amount claimed or forfeited does not exceed one hundred dollars.

Section 145, of the Code of Procedure, contains the following provisions: “Actions for the following causes must be tried in the county where the cause, or some part thereof, arose. * * * 1. For the recovery of a penalty of forfeiture imposed by statute.”

In the case of Jenkins v. Ry., 73 S. C., 393, 53 S. E., 481, the Court ruled, that if a corporation answer a complaint, and contest the case on the merits, it waives the right to insist that the Court did not have jurisdiction of it.

In that case, the Court used this language: “The question of jurisdiction related to the person, and was waived, when the defendant answered the complaint, and contested the merits of the case. It .is only ncessary to refer to Best v. Ry., 73 S. C., 479, 53 S. E., 333, and the cases therein cited, to show that this conclusion is amply supported by the authorities.”

Turning to the case of Best v. Ry., 72 S. C., 479, 53 S. E., 333, we find that Mr. Justice (now Chief Justice) Jones, who after quoting from section 21, article V of the Constitution, and from section 71 of the Code of Procedure, used this language: “This would seem to give magistrates jurisdiction in an action for penalty, not exceeding one hundred dollars, against all defendants who may be subject to the process of the Court, or zvho may voluntarily appear therein.” (Italics ours.) There was a dissenting opinion, but not on this question, and the following authorities were cited to sustain the view expressed by Associate Justice Gary Ex parte Perry Stove Co., 43 S. C., 186, 20 S. E., 980; Smith v. Walke, 43 S. C., 381, 21 S. E., 249; Rosamond v. Earle, 46 S. C., 9, 24 S. E. 44; Martin v. Fowler 51 S. C., 164, 29 S. E., 261; Bird v. Sullivan, 58 S. C., 50; 36 S. E., 494; Burkhalter v. Jones, 58 S. C., 89, 36 S. E., 495; Baker v. Irvine, 62 S. C., 293, 40 S. E., 672; ex parte Hilton, 64 S. C., 201, 41 S. E., 978; Garrett v. Herring, 69 S. C., 278, 48 S. E., 245.

There are cases, however, in which a contrary view is expressed, as will be seen by reference to Silcox v. Jones, 80 S. C., 484, 61 S. E., 948, and the cases .therein mentioned.

The line of cases in this State which hold that when the defendant appears generally, and contests the case upon the merits, the right to object to the jurisdiction of the Court is sustained by the weight of authority elsewhere, and is in accord with justice and fair dealing. He who is silent, when good conscience demands that he should speak, shall not be allowed to speak when justice requires that he should be silent.

The provision that an action for the recovery of a penalty must be tried in the county where the cause, or some part thereof, arose, is a mere statutory requirement as to procedure, but it cannot be successfully contended that it constitutes the subject matter of the action.

Section 71 of the Code of Procedure, in express terms; confers upon magistrates, jurisdiction of an action for a penalty, where the amount claimed does not exceed one hun clrecl dollars. Section 145 is a mere statutory requirement as to the place where the jurisdiction may be exercised.

If the statute had not conferred upon magistrates, jurisdiction of an action for a penalty, the defendant could not give jurisdiction by waiving his right to insist upon the objection, that the magistrate was without jurisdiction to try the case.

But the defendant had the right to waive the objection that jurisdiction was being exercised in the wrong count}'. This distinction is pointed out in 1 Black on Judgments, section 240, as follows: “It is an inflexible rule, that any judgment rendered by a Court upon a matter, not within its jurisdiction, is null and void, incapable of ratification, and subject to collateral impeachment. The principles which govern this point have been well stated in the following language: ‘1. Where the judicial tribunal has general jurisdiction of the subject matter of the controversy or investigation, and the special facts which give it the right to act in a particular case are overruled and not controverted, upon notice to all proper parties, jurisdiction is acquired and cannot be assailed, in any collateral proceeding. 2. Where the judicial tribunal has not general jurisdiction of the subject matter under any circumstances, no averment can supply the defect, no amount of proof can alter the case, no consent can confer jurisdiction * * * . If we inquire more particularly into the meaning of the terms here employed, the answer is, that by jurisdiction over the subject matter is meant the nature of the cause of action of the relief sought, and this is conferred by the sovereign authority which organizes the Court, and is to be sought for in the general nature of its powers, or in authority specially conferred.’ ”

To the same effect are Matter of Moore, 28 Sup. Ct. Rep. 585, and Western L. & S. Co. v. Butte & B. Min. Co., 28 Sup. Ct. Rep., 720.

If we deemed it necessary, we would consider the question whether section 145 of the Code of Procedure is in conflict with section 23, article V of the Constitution, which requires every civil action cognizable by magistrates to be brought before a magistrate in the county where the defendant resides, whereas, section 145 of the Code of Procedure provides: That the action must be tried in the county where the cause, or some part thereof, arose.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.

Mr. Justice Hydricic and Circuit Judges Gary, Watts, Keugh, Gage and Shipp concur in this opinion.