
    BUTLER BROS. v. WELCH.
    Magistrate. — Dating a summons is not requisite to its validity, and unless on account of this error the summons gives no notice to defendant of day of trial in magistrate court, and he is thereby taken by actual surprise, the inadvertence does not effect the merits.
    Before Cage, J., Darlington, March, 1906.
    Affirmed.
    Action -by Butler Bros, against J. C. Welch and' Elias Wright, trading as J. C. Welch. From Circuit judgment affirming judgment of magistrate J. W. Boykin, defendant appeals.
    
      Mr. Geo-. H. Bdimrds, for appellant,
    cites-: 62 S- C., 545; 24 Ebcy., 515, 516, 527; 20- Ebcy. R & P., 1159, 1160.
    
      Mr. J. Monroe Spears, contra,
    February 15, 1907.
   The opinion- of the Court was delivered bv

Mr. Justice Woods.

In this action, in the court of J. W. Boykin, 'magistrate, the plaintiff made an affidavit, under subdivision 16, of sec. 88, of the 'Code of Procedure, that h.e was apprehensive of losing! his debt if the process, was made returnable in the usual statutory time; and, therefore, the magistrate issued his summons returnable in one day from the date thereof at twelve o’clock, noon. The summons contained no date, but was served on the defendant, Elias Wright, along with the plaintiff’s affidavit and the verified account, on January the 17th, 1902. At one o’clock on the following day, January the 18th, 1902, the defendant Wright having failed to. appear, judgment by default was rendered against him. On appeal the judgment of the magistrate was affirmed- by the Court of Common. Pleas for Darlington County.

The defendant Wright appeals; to this Court, alleging error on the part of the Circuit Court in not holding: 1st, “that the said magistrate’s court was entirely without jurisdiction, as the defendant had not due notice of the time set for the trial of -the case;” and 2d, “that the 'summons in this case, made l'eturnable within one day from the date thereof, and bearing no date, was fatally defective, -and that the judgment by default against this defendant was void.”

Placing a date on a summons is not, under the statute, requisite to it© validity. Smith v. Walker, 6 S. C.. 175. On an appeal from a magistrate’s court the appellate court is required “to. give judgment .according to the justice of the case without regard to; the technical errors and defects which do not affect the merits.” Code of Procedure, sec. 3-68. Whether the error of the magistrate in failing to date a summons which, was returnable one day after date was. technical and not affecting the merits depends on whether the defendant was misled to his prejudice -by it. As the defendant did not move to set aside the summons and open the judgment on proof by affidavit of actual surprise or misunderstanding due to the error of the magistrate, the case turns on the inquiry, whether on account of the error the summons on its face afforded no notice to the defendant, as a man of ordinary understanding, that tíre cause would be heard by the magistrate on the day after the service. 'On this point there can be no doubt. The defendant could not have failed to observe the omission- to- write the date on the summons was am inadvertence, for this was Obvious from the face- of the paper; nor could he have failed to know the summons contemplated his -appearance not later than one day after the service, for the -actual -date of the issue of the -summons was necessarily before the service. There is no1' sound reason to suppose the defendant was misled, and, therefore, the error or inadvertence of the -magistrate -did not affect the merits.

It is the judgment of this Court, -that the judgment of the Circuit Court be affirmed.  