
    8152
    McDONALD v. FLOYD.
    1. A JUDGMENT BY DEFAULT IN A MAGISTRATE COURT entered On a SU1Rrnons fixing the trial day less than twenty days after service on a claim for more than $25 is not void for want of jurisdiction, where the defendant does not appear and make the point.
    
      All cases which cannot be reconciled with the principles stated ir Jenkins v. Ry., 84 S. C. 343, must be regarded as overruled.
    
    2. Rehearing refused.
    
    
      Before Aldrich, J., Richland, June, 1911.
    Affirmed.
    Action.' by- T. C. McDonald against- J. W. Fl-oyd and W. A. Floyd. Defendants appeal.
    
      Messrs. Nelson, Nelson & Gettys, for appellants,
    cite: Motion in case is proper practice: 5 S. C. 5; 34 S. C. 452; 35 S. C. 612; 40 S. C. 150: Magistrate court acquired no jurisdiction by this summons: Code of Proe. 88, Sub. 16; 43 S. C. 173; 50 S. C. 23; 52 S. C. 86; 71 S. C. 225; 17 S. C. 75; 75 S. C. 40-7.
    
      Mr. Frank G. Tompkins, contra,
    cites: Transcript must shotv everything necessary to give jurisdiction: 28 S. C. 110. Failure to appear is deemed acquiescence: 28 S. C. 122; Freeman oo Judg., se-c. 126. Magistrate docket is highest evidence of the proceedings in his court: 7 S. C. 224; 11 Rich. L. 413; 49 S. C. 418.
    March 26, 1912.
   The opinion in 'this case was filed on February 26, but remittitur held up on petition for rehearing until

The opinion of the Court was delivered by

Mr. Chirr Justicr Gary.

The following statement appears in the record: “This was a motion in 'the original cause, on behalf of the defendant, W. A. Floyd, to-, stay execution and vacate and set aside a judgment originally rendered against J. W. and W. A. Floyd, on -the first day of April, 1903, by Robert Moorman, Fsq., magistrate for Rich-land county, a transcript of which was filed, and judgment entered thereon, in the Court of Common Pleas' foir Ri-Chland county, and was heard in open Court by bis Honor, Robert Aldrich, presiding Judge, >at the Summer term', 1911, of the Court of Common Pleas.” The motion was refused, whereupon the defendant appealed to this' Court, and, in the language of the appellant’s attorneys, the sole question presented by the exceptions is whether there was error, on the part of his Honor, the presiding Judge, in1 refusing the motion on the ground that the judgment was void, because the magistrate was without jurisdiction1, the summons being fatally defective, in that it was issued and served on November 26, 1902, and required the defendant to appear and answer on December 16, 1902, less than twenty days after service.

Section 88, subdivision 16, of the Code, provides, that “When twenty-five or more dollars is demanded, the complaint shall be served on the defendant, not less than twenty days before the day therein fixed for trial.”

Prior to the decision ini the case of Jenkins v. Ry., 84 S. C. 343, the question of jurisdiction as to the person and the subject matter of the action, was in much confusion, arising from the fact, that there were numerous decisions- which could not be reconciled, as will be seen by reference to> the opinion -of the Court, and the dissenting opinion- in said case. In -order to settle -the law, the Circuit Judges were- called to the assistance of the Supreme Court, and when they sat en banc, it was held that “the provision for the recovery of a penalty, must be tried in the county where the cause or some part 'thereof arose, is a mere statutory requirement as- to procedure, but it cannot be successfully contended, that it constitutes the subject matter -of the action.” And, no strong reason can be urged, why the time prescribed for the trial of the case, should be regarded as the -subject -matter of the action. 'The question of jurisdiction 'herein relates to the person, and when the defendant was- served with a copy of the summons and -compla-int, and did not even) attend, on the day fixed for the trial, for the purpose -of objecting to the jurisdiction of the Court, he thereby waived the right to interpose such objection'.

We shall not undertake to review the cases, prior to that of Jenkins v. Ry., 84 S. C. 343, 66 S. E., 409, as all those that can not be reconciled with the principles therein stated, must be regarded as overruled.

Judgment affirmed.

Petition for rehearing dismissed by formal per curiam order filed March 26, 1912.  