These cases were heard together on the appeal, and the facts involved and questions raised are identical. The summons in each case was served upon the defendant by the sheriff of Marlboro county, on January 24, 1911. The complaints were not served with the summons. The summons stated that the complaint "will be filed in the office of the clerk of the Court for Common Pleas for said county," and required the answer to the complaint to be served on John T. Seibels, No. 5 Clark Building, Columbia, S.C. within twenty days after service, exclusive of the day of service. The summons was subscribed by *Page 380 John T. Seibels and J.K. Owens, plaintiff's attorneys. Seibels lives at Columbia, S.C. and Owens at Bennettsville, S.C. On February 13, 1911, counsel for defendant gave notice of appearance, and demanded that copy of complaint in each case be served on them at the office of Stevenson, Stevenson Prince, in the Planters National Bank Building, Bennettsville, S.C. The service of this notice was accepted by Mr. Owens on that date, and on February 14, 1911, Mr. Seibels received this notice, by mail, at Columbia, S.C. On March 6, 1911, twenty-one days after February 13, 1911, the complaints in each case were prepared and mailed with postage prepaid, to the defendant's counsel at Bennettsville, S.C. as demanded by the notice of appearance. The defendant's counsel received the complaints so mailed next day, March 7, 1911, and forthwith returned the same to plaintiff's attorneys, as not having been served within the time prescribed by law. The complaints were not filed in the clerk of Court's office for Marlboro county, until March 22, 1911. On March 20, 1911, the defendant's counsel served notice that they appeared solely for the purpose of said motion, and would move on the twenty-fourth day of March, 1911, before his Honor, Judge Shipp, "for an order setting aside the service of summons dismissing this case for failure to file the complaint in time, and also for failure to serve the same in time under the statutes of this State." After hearing the motion, his Honor passed an order setting aside the serving of the complaints in each case on the ground that it appeared that the complaints in each of the actions were not served within twenty days in accordance with the notice, and demand of copy thereof, or pursuant to the statute in such cases made and provided, nor were the complaints filed in the office of the clerk within twenty days as stated, would be done in the summons in said actions. Upon announcing the judgment of the Court a motion was made for leave to serve the complaints at that time on the ground of surprise. The Court denied this motion, as no notice was *Page 381 given the other side that any such motion would be made, but without prejudice to plaintiff's applying to any proper authority for any relief they may be entitled to under any section of the Code. The appellants appeal, and challenge the correctness of his Honor's order.
We think the appeal should be dismissed, and while we can find no ruling in this State directly on the points at issue, we find the identical language in our Code, as in the New York Code: "A copy of the complaint need not be served with the summons, in such case the summons must state where the complaint is, or will be filed; and if the defendant, within twenty days thereafter, causes notice of appearance to be given, and in person, or by attorney, demands in writing a copy of the complaint, specifying a place within the State where it may be served, a copy thereof must, within twenty days thereafter, be served accordingly," etc., etc.
"In ordinary cases twenty days are allowed after demand for service of copy of complaint, where defendant's attorney served notice of retainer, and demanded complaint at two different times, for several defendants, and after twenty days from the first service but not the last, moved to dismiss the complaint for want of service, held that the defendant might move on the proof of service of the first notice, and demand without waiting for the expiration of twenty days from the last service." Luce v. Trumpert, 9 How. 212.
"An order cannot be granted ex parte after time of serving it (the complaint) has expired giving the plaintiff further time to serve his complaint. Notice must be given, or an order to show cause." Stevens v. Moore, 4 Sandf. 674.
"Where the complaining party should file his pleading within a specified time, or where either party has placed his adversary in such position as to make it a duty to plead, it is requisite, that unless further time be granted, the required act should be fully performed, within the time limited, whether that time be prescribed by statute, general rules of *Page 382 Court, or rule, or order to declare or plead." Ency. of Pleading and Practice, vol. 21, page 699.
Reference to footnotes made from South Carolina cases sustain this doctrine. McBryde v. Floyd, 2 Bail. 209;Stevens v. Thayer, 2 Bay; Kennedy v. Smith, 1 Brev. 203;Murphy v. Sumner, 1 Hill 216; Wright v. Higginbottom, 1 Nott. and Mc., page 8; Perry v. Richardson, 3 Rich Law 60; State Bank v. Tone, 2 Spears 501.
I think judgment should be affirmed, however, without prejudice to the right of the plaintiffs-appellants, to apply to the Circuit Court for leave to serve the complaint nuncpro tunc upon such terms as the Court may impose as provided for in Judge Shipp's order.