
    8138
    SANDERS v. D. LANDRETH SEED CO.
    1. Attachments—Amendment op Pleadings.—The return of a sheriff on a summons that the defendant had no property within the State which he couldi find subject .to attachment -may be shown to be incorrect and amendment may be allowed.
    
      2. Ibid.—It is- not necessary to serve a warrant of attachment on a person who has in his possession property of a nonresident, but it is sufficient to notify him of the attachment and demand the surrender of the property.
    Before Gage, J., Beaufort, July, 1911.
    Affirmed.
    Motion in -case of Gus'tave Sanders agaimslt D. Bamd'reth Seed Company. Defendant appeals.
    
      Messrs. W. S. Tillinghast and Mordecai & Gadsden, Rutledge & Hagood, for appellant,
    cite: Attachment should 
      
      have been made at or before service of 221; 63 S. C. 104; 69 S. C. 57; 29'S:-Cl sutpgons: 83 S. C. 498.-'-
    
      Mr. W. J. Thomas, contra,
    
      cites:'It is not necessary to serve on defendant any paper except siommons: 43 S. C. 339; Code of Proc. 248. Debts due defendant can be attached: 6 S. C. 446; 54 S. C. 582.
    March 16, 1912.
   The opinion of the Court was delivered by

Mr. Justice Woods.

This appeal is from am order refusing to set aside the alleged service of a summons and complaint on. the defendant, a foreign corporation. The service was made by publication and personal service out of the State, and the appeal depends on whether the attachment issued against the property of the defendant was. illegal and void, for without attachment a foreign corporation: can. not be forced to submit to 'the jurisdiction1 of the Courts of the State. Emmanuel v. Ferris, 63 S. C. 104, 41 S. E. 20; Breon v. Miller Lumber Co., 83 S. C. 221, 65 S. E. 214. The writ of attachment was issued in tire usual way after due compliance with the conditions precedent required by the statute. The affidavit upon) which it was founded stated, among other things., “that said defendant owns property as said plaintiff is informed and verily believes now in said Beaufort county, South Carolina, in the way of bills of lading, moneys, and moneys due to defendant, and in the pos1sessiom of parties now in Beaufort county, which property, bills of lading- and money this deponent is. informed and verily believes said defendant is about to take and carry beyond the limits of this State and beyond the jurisdiction of this Court with the intention; to deprive their creditors here from having said property subjected to> such debts: as may be due by them, hiere.”

was as follows: “I hereby cedify that on the elec (tlulr , *. 1 January, A. D. 1911, at Beaufort, South Carolina, I sc - A ,l W. F. Marscher, cashier of Peoples Bank, the summon.' and1 complaint in this action by delivering copies thereof toi him personally and leaving the same with him. The defendant above named is not a resident of this county or State, and has no property in this county so far as I have been able to find.”

At the hearing of the motion to set aside the service of the summons and complaint, the plaintiff introduced an affidavit from W. F. Marscher, cashier of the Peoples Bank, to the effect that the sheriff had served upon him not only the summons and complaint, but the affidavit and the attachment bond, and demanded of him $304.56 as the property of the defendant in his hands; that at the time of the service and demand he had in his hands money belonging to the defendant collected on a draft drawn by defendant and two other drafts which he subsequently collected, 'and that at the time of the hearing he held money of the defendant to* the amount of $304.56, subject to the order of the Court. To this, affidavit there was no* response on the part of the defendant.

2 The return of the sheriff that the defendant had no* property subject to attachment in this1 State was prima facie correct, but the presumption was subject to rebuttal by evidence that the return was not correct. Grenobles v. West, 23 S. C. 154. The affidavit of Marscher showed not only that the* defendant did have property in the form of money in this State and in the hands of the depómenit, and that the sheriff had served papers on him as the custodian of the property, which gave him full notice of the attachment, but it showed further that the sheriff had actually demanded that he surrender the money to him. On this showing the Circuit Judge with good reason found as a conclusion of fact that the defendant did have money in the State in the hands* of the cashier of the Peoples' Bank. That being so, notice by the sheriff to the cashier of the attachment, and demand for , the money to be paid thereon-, was a sufficient service of the attachment. The statute does not require that the warrant o'f attachment shall be served on the person in- whose hands personal property of the defendant may be found—Grollman v. Lipsitz, 43 S. C. 329, 21 S. E. 272; it is- sufficient if foe give such, person notice of the attachment, and demand the surrender of the property. The Circuit Judge thereupon! properly refused the motion to set aside the service of the -summons and complaint, made on the ground that the Court had1 not acquired jurisdiction by attachment or‘ otherwise, and properly allowed the plaintiff to take proper steps< to- 'have the irregular and incorrect return of the sheriff corrected.

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

Only Mr. Chief Justice Gary and Mr. Justice Hydrick participated in this opinion and concur.  