(dissenting):
*218I disagree with the majority and respectfully dissent.
The Sheriff of Jasper County disregarded an oral request to appear in General Sessions Court for Hampton County. The trial judge was preparing to sentence the son of one of the j udge’s best friends. They, like the j udge and sheriff, were also residents of Jasper County. While I do not commend the sheriffs conduct, I believe the trial judge overreacted when he adjudged the sheriff in contempt of court. A subpoena for the sheriffs appearance should have been served if his failure to appear would trigger contempt proceedings.
The majority states appellant waived any jurisdictional defect and objection by sending a deputy to court with the defendant’s Jasper County records. I disagree. However, assuming this to be correct, I would conclude the sheriff appeared through his deputy.
The majority also states the sheriff was ordered to appear in his official capacity. The record simply does not support this. The Sheriff of Jasper County-has no official capacity in Hampton County. Also, every statement by the trial judge in the record now before this Court, reflects that appellant was ordered to appear as a mere witness.
Generally, a court cannot punish a witness for contempt of court because of his failure to appear unless he has been legally summoned to appear. 97 C.J.S. Witnesses, § 27 (1957). Chapter 7 of Title 19 of the South Carolina Code prescribes the procedure for securing the attendance of witnesses. This procedure was not followed here.
S. C. Code Ann. § 23-15-80 (1976) requires all sheriffs and their deputies to attend the circuit courts held within their respective counties. Clearly, appellant could be proceeded against for failure to appear in a circuit court in Jasper County; however, when a circuit court orders a sheriff of another county to appear in that court, I would hold it must acquire personal jurisdiction over the sheriff by use of its subpoena power before it can punish him for contempt of court for failure to appear.
The majority now holds when one receives oral notice to appear, he can be held in contempt of court for failure to comply. The subpoena has, in effect, been rendered needless. Until now, the service of a subpoena, written notice to appear, assured the witness that the court did in fact require his *219presence. I believe the majority’s holding may subject the summoning process to abuse and therefore dissent.
I would reverse the ruling of the trial judge.