Supreme Court of South Carolina, 1921

Terry Packing Co. v. Southern Express Co.

Supreme Court of South Carolina · Decided March 12, 1921 · Fraser, Gary, Messrs, Watts, Cothran

118 S.E. 628; 125 S.C. 198 (South Eastern Reporter)

Counsel

Messrs. Barron, McKay, Frierson McCants , for appellant, cite: Personal judgment cannot be rendered unless party voluntarily appear or is found within the jurisdiction of the Court so as to be served with process: 95 U.S. 714 ; 24 L.Ed., 565 . Defendant may appear specially to contest validity of service of process: 237 U.S. 189 . To support jurisdiction of State Court to render a personal judgment against a foreign corporation it is essential that it shall appear that the corporation was engaged in business at the time of commencement of the action: 106 U.S. 350 ; 243 U.S. 264 , 61 L.Ed., 710 ; Adv. Ops. (U.S.), No. 7, p. 205; 220 N.Y., 259 ; 205 U.S. 530 . Cases cited by County Judge were under Statutes similar to Sec. 2705 and not Sec. 2665; 1 Civil Code 1912. Distinction between jurisdiction conferred by consent or contract and jurisdiction claimed by virtue of Statute: Law Reps. 9 Exch. 345. Mr. Edw. L. Craig , for respondent, cites: Sec. 2665, 1 Civ. Code 1912, construed: 61 S.C. 361 ; 30 L.R.A. (N.S.), 687; Ibid., 678. Sec. 2665 requires the designation of a place of service not to name an agent: 61 S.C. 381 citing 53 S.C. 106 . State may impose on foreign corporation conditions not repugnant to the Constitution and laws of the U.S.; 61 S.C. 381 ; Thompson Corps. Vol. VI. p. 6263, Sec. 7887; also Secs. 7884, 7888, 7889. Purpose of such legislation: 30 L.R.A. (N.S.), 681; and such legislation creates a status: 69 N.J. Eq., 397 ; 60 Atl., 827 . And such status continues as long as there are Liabilities arising out of transactions in the State: 190 U.S. 157 ; 47 L.Ed., 994 ; 69 N.J. Eq., 397 ; 60 Atl., 827 .

Opinion of the Court

The opinion of the Court was delivered by

Mr Justice Fraser.

The appellant is a foreign corporation, formerly doing business in this State. This action was commenced by the service of the summons in February, 1920. The date of shipment is November, 1917. The last annual statement was filed on the 2d of February 1918. On the 6th of Marclq 1920, the defendant filed with the Secretary of State an application for withdrawal from this State. The last annual statement “designated 1114 Eady Street in the City of Columbia, South Carolina, as the place in said State at which all legal papers may be served.” The plaintiff not being able to find an agent of the defendant, left the summons on the premises, as allowed by the Statute. The question in this case arises on a motion to set aside the service on the ground that the defendant had withdrawn from the State, and, as it had no agent and was not doing business in this State, it could not be sued in this State.

The defendant, a foreign corporation, came into this State to transact business .here, and consented to’ submit to the jurisdiction of the courts of this State by the method adopt *210 ed in this case. Its application for withdrawal was not filed until after the service in this case was complete. Since the service of the summons in this case, it has recognized the validity of the Statute under which it was sued, and it is too late -to deny the jurisdiction of the Courts of this State in these cases. Much has been said about the American Railway Express Company, but it is only confusing. It has nothing to do with this case.

The trial Judge refused to set aside the service, and his ruling is affirmed. Det the order of Judge Whaley be re-, ported.

Mr. Chief Justice Gary and Messrs. Justices Watts and Cothran concur.

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