DocketNumber: 10092
Citation Numbers: 96 S.E. 922, 110 S.C. 491
Judges: MR. JUSTICE HYDRICK.
Filed Date: 9/23/1918
Status: Precedential
Modified Date: 1/13/2023
This is an appeal from an order of his Honor, Judge Sease, refusing to set aside and vacate an attempted service upon the defendant of the summons and complaint herein on the ground that the Courts of this State cannot acquire jurisdiction of a nonresident in a personal action in personam without attachment of his or her property within the State. The action is for specific *Page 502 performance of a contract for the sale of land located in Barnwell county, S.C. The contract was entered into between the parties in the town of Barnwell. The defendant is a resident of the State of Georgia. The defendant was served personally in Savannah, Ga., with a copy of the summons and complaint. No effort was made to attach the defendant's property.
There can be no question that this is an action in personam, and that service of the summons by publication will not confer jurisdiction over a nonresident in personal actions, including personal actions to compel nonresidents to convey real estate within the State. Such a proceeding would not be due process of law. This is conclusively settled by the case of Henry D. McDonald v. F.A. Mabee (decided by Supreme Court of U.S. on March 6, 1917),
"This is a suit upon a promissory note. The only defense now material is that the plaintiff had recovered a judgment upon the same note in a previous suit in Texas, which purported to bind the defendant personally as well as to foreclose a lien by which the note was secured. When the former suit was begun the defendant, Mabee, was domiciled in Texas, but had left the State with intent to establish a home elsewhere, his family, however, still residing there. He subsequently returned to Texas for a short time, and later established his domicile in Missouri. The only service upon him was by publication in a newspaper once a week for four successive weeks after his final departure from the State, and he did not appear in the suit. The Supreme Court of the State held that this satisfied the Texas statutes, and that the judgment was a good personal judgment, overruling the plaintiff's contention that to give it that effect was to deny the constitutional right to due process of law.
"There is no dispute that service by publication does not warrant a personal judgment against a nonresident. Pennoyerv. Neff,
"The usual occasion for testing the principle to be applied would be such as we have supposed, where the defendant was denying the validity of the judgment against him. But the obligations of the judgment are reciprocal, and the fact that here the defendant is asserting and the plaintiff denying its personal effect does not alter the case. Whittier v. Wendell,
MR. JUSTICE GAGE concurs in the dissenting opinion of MR. JUSTICE WATTS.
Michigan Trust Co. v. Ferry , 33 S. Ct. 550 ( 1913 )
Pennsylvania Fire Insurance v. Gold Issue Mining & Milling ... , 37 S. Ct. 344 ( 1917 )
Haddock v. Haddock , 26 S. Ct. 525 ( 1906 )
Baker v. Baker, Eccles & Co. , 37 S. Ct. 152 ( 1917 )
Riverside & Dan River Cotton Mills v. Menefee , 35 S. Ct. 579 ( 1915 )
Pennoyer v. Neff , 24 L. Ed. 565 ( 1878 )