Opinion
13573
February 3, 1933.
Before WHALEY, J., County Court, Richland, December, 1931. Affirmed.
Action by A.P. Richardson against Frigidaire Corporation and others. Defendant named appeared for the sole purpose of objecting to the jurisdiction of the Court, and from an order denying its motion to vacate and set aside the attempted service of summons and complaint on it, it appeals.
The order of the county Judge follows:
ORDERThis matter comes before me on motion of Frigidaire Corporation for an order vacating and setting aside the attempted service of summons and complaint in this action on Frigidaire Corporation.
After hearing the attorneys for and against said motion, and after considering the affidavits and letters offered at the hearing, it appears that the service should not be vacated or set aside as to Frigidaire Corporation.
It appears that Frigidaire Corporation by its officers gave notice to the Secretary of State of South Carolina of its desire to withdraw from the State in 1929, and it appears from the affidavit of one of the officers of said corporation that said corporation is not doing business in the State, but notwithstanding these there remains the question, has this corporation done any act which would show that it is actually doing business in the State at the time of the service of this complaint so as to give this Court jurisdiction of it?
In the case of Ideal Theatre v. Southern Enterprises, Inc., 132 S.C. 352, 128 S.E., 166, the Court states that the two questions to be determined in deciding whether or not the Court had jurisdiction were, (a) was the defendant doing business in the State, and (b) was the party served the agent of the defendant?
In this case one, J.R. Little, maintains an office in Richland County, and the affidavit of the plaintiff states that J. R. Little represented himself to be the agent of Frigidaire Corporation. The defendant, as shown by its letters, referred the complaint made to it by the plaintiff to the Atlanta Office, and Mr. Little, responding to this complaint, attempted to adjust the matter with the plaintiff, and the defendant having invited the plaintiff to make complaint to it if the matter was not adjusted, goes to show that the defendant is attempting to transact business in this State and County.
From the evidence before me it would appear that the defendant is actually engaged in business in this State, and that J.R. Little is acting as its agent. It may be true that the defendant expressed its desire in writing to withdraw from the State, but the acts and expressions of the defendant at other times since it expressed its desire, and at such times as such acts and expressions were unguarded, must be given consideration in deciding this issue.
It is, therefore, ordered, That the motion of the defendant Frigidaire Corporation, for an order vacating and setting aside the service of the summons and complaint, be and the same is hereby denied.
Mr. Edward L. Craig, for appellant, cites: Affidavit in support of a motion should contain positive averments of facts necessary to make out case: 42 C.J., 498; 24 S.C. 202; 28 Cyc., 11; 17 Cyc., 754. Jurisdiction of foreign corporation rests upon actual presence established: 106 U.S. 350; 27 L.Ed., 222; 19 Cyc., 1328; 261 U.S. 171; 67 L.Ed., 594. As to due process of law: 170 U.S. 100; 42 L.Ed., 964; 190 U.S. 406; 47 L.Ed., 1113. Business of corporation must be such in character and extent to warrant jurisdiction: 227 U.S. 218; 57 L.Ed., 486; 33 Sup. Ct. Rep., 245; Ann. Cas. 1915-B, 77; 243 U.S. 264; 61 L.Ed., 710; 37 S.C.R., 280; 246 U.S. 79; 62 L.Ed., 587; Ann. Cas. 1918-C, 537. As to what constitutes doing business: 67 L.Ed., 594; 67 L.Ed., 373; 52 A.L.R., 735. Service upon officer or agent not sufficient: 273 U.S. 119; 71 L.Ed., 569; 190 U.S. 406; 8 L.R.A. (N.S.), 538. Inter-related corporations: 267 U.S. 333; 69 L.Ed., 634; 261 U.S. 171; 67 L.Ed., 594; 43 S.C.R., 311.
Messrs. Cole L. Blease and S.M. Busby, for respondent, cite: As to serving agent of corporation: 132 S.C. 352.
February 3, 1933. The opinion of the Court was delivered by
The appealing defendant, Frigidaire Corporation, sued by the plaintiff, in the county Court of Richland County, appeared for the sole purpose of objecting to the jurisdiction of the Court, and moved for an order vacating and setting aside the attempted service of the summons and complaint in the action on it. It contended that it was a foreign corporation, not doing business in this state, and that J.R. Little, upon whom the summons and complaint were served, was not its agent.
The county Judge, Hon. M.S. Whaley, decided against the contentions of the appellant, and held that the service was valid and that the Court had jurisdiction.
The appeal involves two questions of fact: First, was the appellant doing business in this state at the time of the attempted service? And, second, was Little its duly authorized agent at the time the service of the summons and complaint were made on him?
There was sufficient evidence submitted to the county Judge to sustain his conclusions. That being so, his order, appealed from, which will be reported, is affirmed.
MESSRS. JUSTICES STABLER and BONHAM, and MR. ACTING ASSOCIATE JUSTICE C.C. FEATHERSTONE, Circuit Judge, concur.