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H.S. CHISHOLM, INC. v. KLINGER ET AL.

February 16, 1956

IN RE H.S. CHISHOLM, INCORPORATED, PLAINTIFF-RESPONDENT,
v.
KEITH KLINGER, DEFENDANT-APPELLANT. IN RE R.P. ELLINGSON, M.T.N. ELLINGSON, ROBERT P. ELLINGSON, JR., DONALD ELLINGSON, S.H. ELLINGSON AND D.G. BALDERSON, INDIVIDUALLY AND AS CO-PARTNERS DOING BUSINESS UNDER THE NAME AND STYLE OF ELLINGSON LUMBER CO., PLAINTIFFS-RESPONDENTS, V. KEITH KLINGER, INDIVIDUALLY AND DOING BUSINESS UNDER THE NAME AND STYLE OF KEITH KLINGER LUMBER COMPANY AND DOROTHY KLINGER, DEFENDANTS-APPELLANTS. EX PARTE H.S. CHISHOLM, INCORPORATED, AND R.P. ELLINGSON, M.T.N. ELLINGSON, ROBERT P. ELLINGSON, JR., DONALD ELLINGSON, S.H. ELLINGSON AND D.G. BALDERSON, INDIVIDUALLY AND AS CO-PARTNERS DOING BUSINESS UNDER THE NAME AND STYLE OF ELLINGSON LUMBER CO., PLAINTIFF-RESPONDENTS, V. KEITH KLINGER, INDIVIDUALLY AND DOING BUSINESS UNDER THE NAME AND STYLE OF KEITH KLINGER LUMBER COMPANY AND DOROTHY KLINGER, DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Stukes, Justice.

February 16, 1956.

This action was commenced by service of a rule to show cause, instead of a summons, and petition which should have been denominated a complaint. The material allegations of the petition are that H.S. Chisholm, Incorporated, obtained a money judgment in the Richland County Court on May 13, 1952, against Keith Klinger, execution upon which was returned by the sheriff nulla bona on September 16, 1952; Ellingson Lumber Co., a partnership, recovered judgment in the same court in July 1952 against Keith Klinger in the sum of $2,050.22, execution upon which was returned by the sheriff nulla bona on December 15, 1952; on May 29, 1952, Klinger conveyed to his wife, Dorothy Klinger, by two deeds, certain described real estate in Richland County for the purpose of hindering, delaying and defeating the rights of his creditors particularly the petitioners; wherefore petitioners prayed for issuance of rule to show cause against Keith Klinger and Dorothy Klinger why the deeds should not be declared void.

The court issued its rule which recited the judgments and nulla bona executions and the conveyances by the judgment debtor to his wife, Dorothy Klinger, both of whom were ordered to show cause on July 25, 1953, why the conveyances by the judgment debtor to his wife should not be declared void. The rule was signed by the Judge of the Court.

Counsel for defendants appeared on the return date (was heard four days later — on July 29, 1953) and contested the jurisdiction of the court upon the ground that personal service of the petition and rule was made upon the defendants in Louisville, Kentucky. The objection to the jurisdiction was overruled by order of the court dated August 5, 1953, upon the ground, in effect, that the action involved the setting aside of conveyances of real estate situate within the State and service of process beyond the jurisdiction is authorized by Sections 10-451 to 10-455 of the Code of 1952; and the matter was referred to the master under a general order of reference. There was no appeal from this order.

The master held a reference of September 2, 1953. In his report there is reference to a special appearance by counsel for and on behalf of the defendants, but the counsel participated in the reference and objected to the admission of certain evidence and made a motion to dismiss the proceeding, quoting from the record, "on the grounds that there hasn't been any evidence to show that the property was transferred for the purpose of defeating these creditors. * * *." The record contains counsel's argument in support of his motion. He subsequently added other grounds for the motion to dismiss as shown in the following excerpts from the record:

Defendants' counsel, Mr. Preston:

"* * * I move to dismiss and appear especially to contest the jurisdiction of this case, in that the procedure was on its face a new action; there are two judgment creditors combining in a suit against Klinger, Keith Klinger and Dorothy Klinger and Dorothy Klinger was not a party to the two suits where the judgments were gotten, and she is a party to this; and, as I stated, it shows on its face that it is a new cause of action. The defendants or respondents in this case have not been properly served. This is a rule to show cause and a petition, but no summons has been served. * * *

"We contend that no action has been commenced according to the statute and serving a summons within sixty days after filing notice of pendency of the action.

"The Master: Did you argue that point before Judge Bates?

"Mr. Preston: No, we argued jurisdiction — that they were not served; they were served by rule to show cause. Since they were in Kentucky, you couldn't order them to appear before his Court. He said it was in personam and I said it was in rem."

The master made report in which he recommended that defendants' objections to the jurisdiction of the court be overruled upon the ground that the petition and rule contained the substantial requisites of a summons and the defendants are properly before the court; that the defendants be given twenty days to file and serve their return to the petition and rule; and the matter proceed on the merits. Exceptions to the report were overruled by the court and it was confirmed, and the defendants were allowed twenty days to file and serve their return. This appeal followed.

Appellants' first two questions on appeal may be combined into the query whether an action may be commenced by the service of a rule to show cause instead of a summons. Section 10-401 of the Code of 1952 provides that civil actions in courts of record shall be commenced by service of a summons. However, the device or rule to show cause has heretofore been approved, or rather excused, by the court; and the lower court properly followed in this case the precedent of Beard-Laney, Inc., v. Darby, 208 S.C. 313, 38 S.E.2d 1, 3, from the opinion in which the following is quoted:

"Every requisite of a summons was contained in the order which was served on appellant along with the amended complaint. While this order was not `subscribed by the plaintiff or his attorney,' surely a notice and a command issued by the Court itself should be as efficacious as one issued by the party to an action or his attorney. The position of ...


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