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TAYLOR ET AL. v. WALL

November 11, 1957

JOHN W. TAYLOR AND FRED B. MCLEAN, D/B/A MILLBROOK SUPER MARKET, RESPONDENTS,
v.
W.C. WALL, APPELLANT.



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

November 11, 1957.

This action was instituted by John W. Taylor and Fred B. McLean, doing business as Millbrook Super Market, the respondents herein, against W.C. Wall, appellant, to recover damages in the sum of One Thousand Two Hundred Fifty & 00/100 ($1,250.00) Dollars.

The complaint alleges that the respondents are the owners of a lot of land in Aiken County, S.C. The complaint then alleges that the respondents and the appellant entered into a contract, by the terms of which it was agreed that the appellant would pave the front and side of the lot of land owned by the respondents for a consideration of One Thousand & 00/100 ($1,000.00) Dollars. It is then alleged that the appellant, instead of performing the terms of the contract in a workmanlike manner and with good material, that after several months had elapsed, the hot asphalt which had been poured upon a thin layer of crushed stone, began to break through and cause water to stand on the dirt and washed out holes therein. It is then alleged that the appellant "instead of improving the land has injured and damaged it. * * *."

It appears from the record that the appellant is a resident of McCormick County and that this action was commenced in the Court of Common Pleas for Aiken County by the service of a Summons and Complaint upon the appellant at McCormick, South Carolina.

The appellant demurred to the complaint on the ground that the court had no jurisdiction of the person of the appellant or the subject of the action, in that the cause of action in said complaint being for breach of contract, the appellant had a right to trial in the County of his residence. This demurrer was heard by Honorable T.B. Greneker and he issued an Order overruling the same. From this Order overruling the demurrer, the appellant assigns error.

The appellant apparently was attempting to follow the provision of the Code which is contained in Section 10-642, 1952 Code of Laws of South Carolina, which provides:

"The defendant may demur to the complaint when it shall appear upon the face thereof that: (1) The court has no jurisdiction of the person of the defendant or the subject of the action; * * *."

Examination of the complaint shows that it contained no allegation as to the residence of the appellant. It did recite, however, that the real estate upon which the work was done by the appellant was situated in Aiken County, South Carolina.

Under the provision of the Code above quoted, and the decisions of this Court, a complaint is not demurrable on the ground that the court has no jurisdiction of the person or the subject of the action unless it appears upon the face thereof. This court has so held in the case of Duncan v. Duncan, 93 S.C. 487, 76 S.E. 1099.

It is well settled that in passing on a demurrer, the court is limited to the allegations of the complaint which must be accepted as true, and cannot consider facts not alleged therein. Skalowski v. Joe Fisher, Inc., 152 S.C. 108, 149 S.E. 340, 65 A.L.R. 1427; Williams v. Continental Casualty Co., 155 S.C. 543, 152 S.E. 703; Spell v. Traxler, 229 S.C. 466, 93 S.E.2d 601.

By reference to the complaint, the substance of which has been hereinbefore stated, it will be seen that it does not appear upon the face thereof that the court had no jurisdiction of the person of the appellant, or of the subject of the action. Hence there was no error in overruling the demurrer.

Since the appellant contends that the Common Pleas Court of Aiken County was without jurisdiction for the reason that the complaint stated only a cause of action for breach of a contract and he being a resident of McCormick County, South Carolina, the proper remedy was for the appellant to move to change the place of trial pursuant to the provision of Section 10-310, 1952 Code of Laws of South Carolina, which provides:

"The court may change the place of trial in the following cases: (1) When the county designated for that purpose in the complaint ...


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