Little v. Christie

The case of Pennoyer v. Neff, 95 U.S. 714, merely decides that service by publication alone does not give the Court jurisdiction to render a judgment in personam against a non-resident, a principle well established by our own cases, among the latest of which is Pepper v. Shearer, 48 S.C. 492, 26 S.E., 797. The case of Pennoyer v. Neff, however, recognizes that service by publication, in connection with an attachment of the non-resident's property within this State, is effectual to give jurisdiction to render judgment to the extent of the property attached.

The summons in this case was dated 6th of April, 1903, and on the 7th April, 1903, the plaintiff filed affidavits with complaint showing that a cause of action arising in this State existed against the defendants, that defendants were non-residents of this State, and could not after due diligence be found within the State, and that defendants owned property in this State, consisting of steam drills,, hoisting engines,c., at Cayces, S.C. where they do business. Thereupon an order for publication of said summons was made, copy of summons and complaint mailed to each of the defendants at their respective places of residence, and publication of summons in the Daily Record, a newspaper published in the city of Columbia, was commenced on said 7th day of April, 1903, and continued weekly for six weeks. Now it is claimed that all this is void for want of jurisdiction, merely because an application for attachment was not made until the 12th day of June, 1903, when an attachment was issued, under which the property of the defendants was seized on the 18th day of June, 1903. In the absence of any statute expressly requiring it, I do not think it is material which precedes, whether service by publication or the attachment, provided both exist when judgment is demanded to the extent of the property attached. In 17th Ency. Pl. Pr., 44, it is stated that, under some statutes, the attachment must precede the order of publication, though the rule is otherwise in some States, citing on the last proposition, Sawyer v. Sawyer, 16 Ind., 213; Iowa State Savings Bank v. Jacobson, 85 Dak., 292; Tufts v. Volkening, 122 Mo., 631. If the statute provided that attachment could issue only at the time of the issuance of the summons, there would be ground for holding that the warrant of attachment should precede the order for publication, but our statute, sec. 248, Code Procedure, provides that an attachment may issue "at the time of issuing the summons or any time afterwards."

The rule stated in Smith v. Walker, 6 S.C. 169, andCureton v. Dargan, 12 S.C. 122, that summons is considered issued as soon as it is made out and an application for attachment founded on it, was undoubtedly correct as applied to cases where the summons was dated after the warrant of attachment was issued, and the question was whether the attachment preceded the issuance of the summons. But those cases did not mean to lay down a hard and fast rule to determine in all cases when a summons is issued against a non-resident. The argument is quite as strong that a summons is issued against a non-resident, who cannot be found within the State, when it is made out as required by statute and an order of publication obtained in the manner provided by law. After this the procedure in connection with the summons relates to its service rather than to its issuance.

The argument that a summons against a non-resident is not issued until application thereon for attachment, is wholly inconsistent with the statute permitting an attachment to issue at any time after the issuance of the summons. There is no reasonable ground for distinguishing between the time of application for attachment and the time of issuance pursuant to the application, and it could hardly be said that the words "at any time afterwards," meant merely to cover the interval of time between an application for attachment and the issuance of the attachment. If this be so, then a ruling that summons is only issued against a non-resident, when attachment is applied for, would practically strike the words "at any time afterwards," out of the statute. For the purposes of sec. 248, Code, providing for attachment, an action is deemed commenced when the summons is issued, provided personal service shall be made or publication begun within thirty days. This does not necessarily mean that publication in all cases must commence within thirty days after the granting of an attachment, but it is as reasonable to say that it means that publication should be commenced within thirty days after the issuance of the summons.

The Court had undoubted jurisdiction of the subject matter, and upon compliance with the statute regulating the same, had jurisdiction to proceed in the matter of service by publication. The statute regulating service by publication does not require any showing that an attachment has been issued or served, as it undoubtedly would if the legislature had intended that order for publication should only issue after an attachment; on the contrary, the statute merely requires a showing that the non-resident has property in the State, which was complied with in this case, thereby showing that attachment was in contemplation as the only method of reaching defendant's property. Of course, under Pennoyer v. Neff and Tillinghast v. Boston Company, service by publication would be ineffectual unless there should be an attachment before judgment; but in this case there is an attachment of defendants' property. The case of Tillinghast v. BostonCo. related to a case in which there was no attachment, andcould be none, as the defendant therein had no property inthis State, and, therefore, affords no authority in this case, where defendants' property has been attached.

I see no good reason for declaring the proceedings by publication void for want of jurisdiction.