Jenkins v. Southern Railway

53 S.E. 481, 73 S.C. 292, 1906 S.C. LEXIS 181

• Court: Supreme Court of South Carolina
• Decided: February 23, 1906
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

The record contains the following statement of facts: “This action was begun in the magistrate’s court in Cherokee County, April 15th, 1905, by the, plaintiff to recover the statutory penalty under acts 1903, pages 81 and 82. On December 29th, 1904, plaintiff delivered tO' the defendant, at Gaffney, S. C., for transportation to Greers, S. C., a lot of household goods. A box of these goods was never delivered to1 the plaintiff, but was lost or destroyed. After a part of the goods arrived at Greers, the plaintiff made some effort to get them'. On March 4, 1905, plaintiff filed with agent at Greers, in Greenville County, a claim, in- writing for $100, which is. shown by the case in the damage suit as well as by the record' in this case. He also brought this suit on the same day that his- action for danu ages was commenced.

“The damage suit was tried on May 6th, 1905, resulting in a verdict of $100' for plaintiff, upon which judgment was entered May 10th, 1905. This, case was. subsequently tried on May 10th, 1905, by the magistrate without a jury. He gave plaintiff judgment for the sum. of $50, May 11, 1905..

“Defendant then moved to set aside the judgment on the ground that the magistrate was without jurisdiction, the cause of action, if any, having arisen wholly in Greenville County, S-. C. The magistrate overruled the motion. Defendant then appealed to the Circuit Court. The judgment of the Circuit Court affirmed the judgment of the magistrate’s court, and all of defendant’s exceptions were overruled. From1 judgment of the Circuit Court defendant gave due notice of appeal.”

The defendant interposed a general denial, and contested the case upon the merits.

In dismissing the appeal from the judgment rendered by the magistrate, the Circuit Judge said: “The cause comes before me upon appeal by defendant from the judgment of the magistrate in favor of the plaintiff for the full amount, and from the order of said magistrate, overruling defendant’s motion to set aside said judgment on the ground that no part of the cause of action arose in this county. I agree with the magistrate in his findings and also in his action in-overruling said motion, and his judgment and said order are hereby sustained and affirmed. I find as fact, also, that at least a portion of the cause of action did arise in this county, and that his action could be brought in the county where the main action was brought.”

The defendant’s exceptions will be set out in the report of the case.

Section 88 of the Code provides that certain rules shall be observed in the courts of magistrates*, one of which is that “pleadings are not required to be in any particular form; but must be such as to enable a person of common understanding to know what is intended.”

Section 368 of the Code, relative to- appeals to the Circuit Court from inferior courts, contains the provision, “upon hearing the appeal, the appellate court shall give judgment according to' the justice of the case, without regard to technical errors and defects which do not affect the merits. In giving the judgment, the Court may affirm or reverse the judgment of the Court below, in whole or in part, and as to any or all of the parties, and for errors of law or fact.”

1- If the Circuit Court, upon hearing the appeal from the magistrate, overrules or sustains the exceptions, his action cannot be assigned as error, as to1 any of the exceptions that involved questions of fact, or technical defects that did not affect the merits. All the exceptions of the appellant relate to questions of fact, or ‘‘technical errors and defects which do not affect the merits,” except that which assigns error on the part of-his Honor, the Circuit Judge, in refusing to dismiss the action on the ground that the magistrate did not have jurisdiction.

2 ' 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 necessary to refer to Best v. Ry., 72 S. C., 479, and the cases therein cited, to show that this conclusion is amply supported by the authorities.

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