These three actions were simultaneously but separately instituted by the several plaintiffs against the same defendants, for damages on account of personal injuries alleged to have been sustained in a collision between a truck which belonged to the defendant Burkett and operated by his agent, the defendant Pinkney, and the automobile in which they were riding, near the City of Spartanburg. It was alleged that the collision was due to the negligent, reckless, and unlawful operation of the truck by the driver.
The defendants Burkett and Pinkney were and are residents of the County of Sumter. *Page 59
I will confine my attention to the case first above stated; what I shall have to say being considered as applied to the other two cases.
At the time of the commencement of the action the plaintiff sued out an attachment and had the truck levied upon by the Sheriff, in whose possession it has since remained.
The case has a very unusual presentation: The personal defendants answered interposing an objection to the jurisdiction of the Court of Common Pleas of Spartanburg County, upon the ground that they were residents of Sumter County where only they could be sued, they appearing for that purpose only.
In September, 1929, after the commencement of the action in May, 1929, and the service of the answer, the plaintiff gave notice of a motion "for an order finally disposing of the first defence set up in each of the answers (the objection to the jurisdiction), which is, in legal effect, a motion by the defendants to change the venue from Spartanburg County to Sumter County on the ground that the defendants are residents of that County, and will seek an order refusing the change of venue and, in effect, changing the venue to Spartanburg County as though the action had been instituted in Sumter County, on the ground that the convenience of witnesses will be promoted by the trial of the cases in Spartanburg County, and that to require the trial in Sumter County would be substantially to defeat the rights of the plaintiffs, because their means and the means of the numerous witnesses who saw the accident resulting in injury to the plaintiffs are so limited as to render it a practical impossibility for the plaintiffs and their witnesses to appear for trial in Sumter County, and, on the further ground that one of the plaintiffs, H.S. Lipscomb, `is aged, in ill health, and so injured by the accident as to make it wholly impossible for him to go to Sumter,' and as an alternative motion `for an order allowing the plaintiffs to dismiss as to the personal defendants and to proceed with the action in Spartanburg *Page 60 County against the damage-feasant automobile, which did the injury in Spartanburg County, and which was attached and is now held in Spartanburg County.'"
The motion of the plaintiff then came on to be heard by his Honor, Judge Sease, who filed an order dated September 14, 1929. In this order his Honor did not pass upon the question of jurisdiction of the Court of Spartanburg County over the personal defendants, a matter directly in issue in the motion of the plaintiff, and in the answer of the defendants, but appears to have treated the objection interposed to the jurisdiction as a motion on the part of the defendants to change the venue from Spartanburg County to Sumter County, a matter that was not then before him, except as it incidentally would follow upon his sustaining the jurisdictional objection. He accordingly held that for the convenience of witnesses the trial had best be had in Spartanburg County, a matter that was not then and could not have been before him, and refused what he considered the motion before him to have been to change the venue to Sumter County. If the Spartanburg Court had jurisdiction of the personal defendants, it had the right to retain that jurisdiction until the defendants upon a proper showing might procure an order changing the venue to Sumter County, a motion that they were not making. If it did not have jurisdiction of the personal defendants, upon so concluding the presiding Judge of the Spartanburg Court could do nothing but sign an order transferring the case for trial to the Sumter Court,Rafield v. R. Co., 86 S.C. 324, 68 S.E., 631. This order could in no sense have been considered as a change of venue, for that assumes that the Court from which the case was transferred to another county had originally jurisdiction. The order transferring the case to Sumter County, which automatically would follow sustaining the objection to the jurisdiction of the Spartanburg Court, would lodge the power to change the venue only in the Sumter Court. *Page 61
His Honor should have passed upon the jurisdictional objection. It appears, however, that when he treated that objection as a motion by the defendants to change the venue from Spartanburg to Sumter, he assumed that at that time the Spartanburg Court had jurisdiction of the personal defendants, for only in that event could he have passed any other order than one providing for a transfer of the case for trial to the proper county, where alone a motion for a change of venue could properly be made.
This brings me to the question of the jurisdiction of the Spartanburg Court over the personal defendants; upon this issue I do not see how there can be room for argument.
Section 378 of the Code provides that: "In all other cases [than those referred to in the preceding sections, among which the present action does not appear] the action shall be tried in the county in which the defendant resides at the time of the commencement of the action. * * *"
It has been settled by the case of Bank v. Brigman, 106 S.C. 367,91 S.E., 332, L.R.A., 1917-E, 925; Hall v.Locke, 118 S.C. 267, 110 S.E., 385; Williams v. Garlington,131 S.C. 289, 127 S.E., 20; Tolbert v. Buick Car, 142 S.C. 362,140 S.E., 693; Petit v. Wise, 131 S.C. 112,126 S.E., 400; Ex parte Maryland Ins. Co., 117 S.C. 106,108 S.E., 260, that an attachment proceeding against an offending automobile is a proceeding in rem and may be instituted in the county in which the injury occurred and where it may be found. We do not think that this very exceptional proceeding, to which the owner, as it has been held, need not be a party, can be so extended by making him a party and abrogating the provisions of Section 378.
In Williams v. Garlington, supra, a similar action was brought in Greenville County on account of a collision in that county; the automobile was there attached; the personal defendants were residents of Laurens County; the order of his Honor, Judge Dennis, from which the defendants appealed was as follows: *Page 62
"The defendants moved that the action be dismissed or the venue changed to Laurens County; it appearing that all the defendants reside now and did reside at that time in Laurens County. The plaintiff thereupon withdrew all demand for judgment against any of the defendants, and asked to proceed against the car which has been attached as a proceeding in rem. Under the case of Hall v. Locke, 118 S.C. 267,110 S.E., 385, such an action in rem is approved. While my understanding of attachment is that it is a supplementary proceeding which cannot stand alone, still under that decision of the Supreme Court it seems that in an automobile accident case an action can be maintained against the automobile as an action in rem. The demand for judgment against the defendants having been withdrawn and the proceeding being in rem, the motion to dismiss the action and to change the venue to Laurens County is overruled."
The order was affirmed by this Court upon the ground that the plaintiff having withdrawn any claim for judgment against the personal defendants, this in effect converted the action to one in rem, and the car having been attached in Greenville County, the Court of that county had jurisdiction over the automobile. It seems clearly indicated that if claim for judgment against the personal defendants had been insisted upon, the case would have been transferred to Laurens County.
In Tolbert v. Buick Car, supra, the proceeding was entirely one in rem; the owner was not made a party; the automobile was attached. The Court held that in a proceeding in rem it was not necessary that the owner be made a party.
In the cases upholding the jurisdiction of the Court, it was placed upon the ground that the proceeding was one in rem; no question as to the liability of the owner beyond the value of the car being involved.
His Honor, Judge Sease, specifically declined to pass upon the motion of the plaintiff to withdraw his action so far as the personal defendants were concerned. If he had *Page 63 granted the motion, doubtless under the Williams v. Garlingtoncase the plaintiff might have held jurisdiction so far as his attachment against the truck was concerned. Not having done so, that question is not before this Court.
I think therefore that the order of his Honor, Judge Sease, should be reversed and the case remanded to the Court of Common Pleas of Spartanburg County with direction to sustain the jurisdictional objection of the personal defendants and to order a transfer of the case as to them to Sumter County without prejudice to a motion by the plaintiff in the Court of that county for an order changing the venue to Spartanburg County.
The leading opinion permits the plaintiffs to prosecute inrem, against the car, in the Court of Common Pleas of Spartanburg County, and directs the proceeding against the personal defendants to be transferred to Sumter County. This anomalous situation demonstrates, I think, the fallacy of the Hall v. Locke decision, 118 S.C. 267, 110 S.E., 385, which in my opinion, with the cases which have followed it, should be overruled, and that the entire case should be transferred to Sumter County. I agree fully with the observation of his Honor Judge Dennis in the Williams v. Garlingtoncase, above quoted, which is in line with my views expressed in the Hall v. Locke case.