Tenney v. American Pipe Mfg. Co.

96 F. 919, 1899 U.S. App. LEXIS 3288

• Court: U.S. Circuit Court for the District of South Carolina
• Decided: October 18, 1899
• Status: Published

Opinion

SIMONTON, Circuit Judge.

The ground of the motion is that the petition and bond for removal were not filed within the time allowed by statute for making answer. The defendant is a foreign corporation, and the summons was served by publication. The first publication was on Sunday, October 23d; the last publication was Sunday, November 27th, the sixth publication, but the day beginning the sixth week. The full six weeks did not terminate until December 3d. The point raised by the plaintiff is that the service was completed by the sixth insertion of the advertisement in the newspaper, and that the time for answering began to run from the date of the sixth insertion, and not from the end of the week following that insertion. The Code of South Carolina (section 158) provides that the publication shall he made “at least once a week for six weeks.’ Service by publication of the summons upon a nonresident is in derogation of the common law, and the statute must be strictly construed. Guaranty Trust & Safe-Deposit Co. v. Green Cove Springs & M. R. Co., 139 U. S. 137, 11 Sup. Ct. 512. The precise point bere raised bas been decided by tbe New York court of appeals under a code wbicb in this respect is precisely similar to tbe South Carolina Code. Market Nat. Bank of New York v. Pacific Nat. Bank of Boston, 89 N. Y. 398. In this case it is field that tbe service'is not complete until tbe expiration of tbe full six weeks. With this view I concur. See, also, Code S. C. § 158. It is therefore ordered that tbe motion to remand be refused.