Opinion
9809
September 25, 1917.
Before MAULDIN, J., Chester, November, 1916. Modified.
Action by O.A. Darby against the Southern Railway Company and another. From a judgment of a magistrate's Court in favor of the defendant, Atlantic Coast Line Railroad Company, affirmed by the Circuit Court, plaintiff appeals.
Messrs. Marion Marion, for appellant, cite: As to jurisdiction of magistrate: Code Civ. Proc., sec. 174; 47 S.C. 387. Cause of action for penalty: 47 S.C. 387; 65 S.C. 326; 81 S.C. 390. Venue: Civil Code, secs. 2573, 2576; 81 S.C. 390; 73 S.C. 192; Pomeroy Rem. Rights (2d ed.) 496; 85 Kan. 48; 116 P. 475. Remedy as to venue: 87 S.C. 101; 86 S.C. 324; 22 S.C. 272; 97 S.C. 57. Joinder of causes of action: 24 S.C. 42; 70 S.C. 112, 113; 15 S.C. 10. Misjoinder: 15 S.C. 10; 34 S.C. 370; 43 S.C. 224; 68 S.C. 257; 82 S.C. 562; 24 S.C. 42; 70 S.C. 112, 113.
Mr. J.M. Hemphill, for respondent, cites: As to jurisdiction of magistrate: Const., art. V, sec. 23; 70 S.C. 397; Code Civ. Proc. 174. Inapplicable to magistrate's Courts: Const. cited. Magistrate had no jurisdiction in action for penalty: Civil Code, secs. 2573, 2576; 81 S.C. 390. Appearance as waiver: 97 S.C. 56. Joinder of causes of action: 66 S.E. 406; Code Civ. Proc. 218.
Mr. R.L. Douglas, also for respondent.
Messrs. Marion Marion, for appellant, in reply, cite: As to appearance: 72 S.C. 481; 73 S.C. 296; 69 S.C. 278.
September 25, 1917. The opinion of the Court was delivered by
Plaintiff brought this action in the Court of a magistrate in Chester county against the defendants jointly, alleging that on March 11, 1916, he deposited his suit case with the joint agent of defendants at Camden and received a parcel check for it; that several hours afterwards he bought a ticket over the Atlantic Coast Line Railroad from Camden to Sumter, and gave the agent of that road the parcel check in exchange for a baggage check for his suit case; that when it was delivered to him at Sumter he discovered that it had been opened and goods of the value of $37.40 had been taken from it; that on March 16 he filed a claim with the agent of the Atlantic Coast Line Railroad Company at Sumter for the value of the goods so taken, and that his claim was not paid within 30 days thereafter, and thereby defendants became liable to him for $50, the penalty provided by statute in such cases. He demanded judgment against defendants for $87.40 and costs of the action.
The Atlantic Coast Line Railroad Company demurred to the complaint on three grounds: (1) That the Court had no jurisdiction of said defendant because it was not alleged that it was a resident of Chester county; (2) that the Court had no jurisdiction to enforce the penalty, because that constituted a separate cause of action against said defendant; (3) that several causes of action were improperly united in the same complaint, to wit: (1) For loss under the parcel check; (2) for loss under the baggage check; (3) for the penalty.
The magistrate sustained the demurrer on all the grounds, and his judgment was affirmed on appeal by the Circuit Court. Plaintiff appealed to this Court.
When the lack of jurisdiction appears upon the face of the complaint, the objection may be made by demurrer; but when it does not so appear, it must be made by plea, or motion, supported by affidavits, showing the facts necessary to establish want of jurisdiction. It did not appear upon the face of the complaint that the demurring defendant was not a resident of Chester county. Therefore, the first ground of demurrer was improperly sustained.
Moreover, as to the cause of action against defendants jointly, that ground of demurrer could not have been sustained, even if it had been alleged that said defendant was not a resident of Chester county, because it was alleged that the other defendant was a resident of Chester county; and where a cause of action exists against two or more defendants on a joint liability, and they reside in different counties, the action may be brought against all of them in the county of the residence of either. Strickland v. Strickland, 95 S.C. 492, 79 S.E. 520.
The second and third grounds of demurrer were properly sustained. The complaint stated three separate and distinct causes of action: First, against both defendants jointly for the loss of plaintiff's goods while in possession of their joint agent; second, against the Atlantic Coast Line Railroad Company for loss of the goods while in possession of its agents; third, against the same defendant for the penalty.
If the goods were lost while in possession of the agent of both defendants, they are jointly liable, and it was proper to sue them jointly. But if they were lost while in possession of the agents of the Atlantic Coast Line Railroad Company, that company alone is liable, and that company alone is liable for the penalty. The Southern Railway Company has no connection with the second and third causes of action, because its liability, if any, is that of warehouseman, and not that of a connecting carrier. At any rate, it is not inferable from the allegations of the complaint that it is liable as a connecting carrier. Therefore, the joinder of the first with the second and third causes of action was improper. Hines v. Jarrett, 26 S.C. 480, 2 S.E. 393; Pom. Rem., secs. 308, 479-482. The Code (section 218) permits the joinder of several causes of action in the same complaint, when they fall within the classes therein described; but with these restrictions: that "causes of action, so united, must all belong to one of these classes, and, except in actions for the foreclosure of mortgages, must affect all the parties to the action, and not require different places of trial, and must be separately stated." By rule 15 of section 97, the provisions of the Code of Procedure respecting the forms of actions, parties to actions, etc., are made applicable to magistrates' Courts.
The place of trial of civil actions is fixed by statute. Code Proc., secs. 172-175. The general rule, under the statute, is that a sole defendant has the right to have a transitory cause of action against him tried in the county of his residence. But that right may be waived. Jenkins v. R. Co., 84 S.C. 344, 66 S.E. 409; Ex parte Townes, 97 S.C. 56, 81 S.E. 278. However, it was not waived in this case, for the objection was properly made and in due time. The statute makes some exceptions to the general rule above stated. The only one which we need consider is that provided by section 173, to wit, that an action to recover a penalty imposed by statute must be tried in the county where the cause of action or some part thereof arose. The cause of action for the penalty arose in Sumter county. Smith v. Ry., 84 S.C. 167, 65 S.E. 1029. But that provision of section 173 has been modified by a later statute (section 2576, vol. I, Civ. Code), which provides that the penalty may be sued for in any county where the action for the loss or damage may be brought. Therefore, by the terms of the statute, the Atlantic Coast Line Railroad Company may be sued in any county in which it is resident for the loss or damage, and for the penalty, and both causes of action against it may be united in the same complaint.
Appellant contends that demurrer was not the proper method of raising these objections, and relies upon rule 6 of section 97 of the Code of Procedure, which mentions only two grounds of demurrer to a complaint or answer in magistrates' Courts, to wit, for uncertainty and insufficiency of its allegations. That is a technical objection which does not affect the merits. In magistrates' Courts it makes little difference in what form such objections as these are raised, whether by demurrer, motion or plea, provided they are made in due time, and brought to the attention of the magistrate in any recognized or proper manner so as to require his ruling thereon. Technical rules of procedure are not applicable in these Courts, and, even on appeal from them to the Circuit Court, the latter is required to give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits. Code Civ. Proc., sec. 407.
The judgment of the Circuit Court is modified according to the views herein announced, and the case is remanded for such further proceedings as may be proper, not inconsistent therewith. Modified.
MR. CHIEF JUSTICE GARY did not participate in the consideration of this case.