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Civil Procedure in Magistrates' Courts
The technical rules of procedure applicable to other courts in the state's uniform court system are not imposed upon the courts of magistrates. The permitted use of oral pleadings and oral notice is indicative of the informality of the magisterial system which is one of its highest virtues as a court of small claims resolution. Even on appeal to the circuit court, the magistrate's action is required "to give judgment to the justice of the case, without regard to technical errors and defects which do not affect the merits."
1. The Pleadings
In the magistrate's court, there are two types of pleadings - the complaint by the plaintiff and the answer by the defendant. (Rules 5 and 7, SCRMC). The complaint should state, in a short and plain written manner, the facts constituting the cause of action, i.e. what the plaintiff claims and why the claim is made. (Rule 5, SCRMC) and its sufficiency is not viewed with a high degree of technicality. The plaintiff may combine as many claims as the plaintiff has against a defendant in one case and may sue more than one defendant in one case if the claim involves all of the defendants. The defendant’s answer may deny in total or in part any or all of the material allegations made in the plaintiff’s complaint, and/or allege any new matter constituting a defense, and also a notice, in a plain and direct manner, a counterclaim.
Any of the pleadings may be orally given or presented in writing. A defendant may even answer orally a complaint made in writing to the magistrate. However, no person should be allowed to make a pleading over the telephone, i.e., their personal appearance to make their oral statement should be required. Where a pleading is made orally, it must be reduced to writing, with the assistance of the court, if the plaintiff or defendant requests such assistance. (Rules 5 and 7, SCRMC). The papers should then be filed with the magistrate.
2. Summons and Service Process
After all pleadings have been satisfactorily filed by the plaintiff with the magistrate, a summons should be drawn up by the magistrate. Civil actions are initiated in the magistrates' court, like circuit courts, by the service of the complaint and a summons upon the defendant(s). The summons, required by general constitutional theories of proper notice, must contain the name of the state and the county, the file number of the action, and the names of the parties, be directed to the defendant, shall state the time within which these Rules requires the defendant to file an answer and any counterclaim, and shall notify the defendant that in case of failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. A copy of the original summons, along with a copy of the complaint and any attachments, shall be served on each defendant. In some cases of unliquidated demands (discussed elsewhere), additional material may be filed by the plaintiff with the magistrate and served upon the defendant in order to expedite matters in the event of a defendant's default. (Rule 11, SCRMC). The form of summons appearing at Rule 24 of the SCRMC is sufficient, and is recommended. (See Rule 6, SCRMC).
3. Service of Process
Service of the summons and complaint, often referred to as process, may be by personal service upon the defendant by mail or by publication as provided in Rule 6, SCRMC. The Rule provides specific guidelines as to who may serve process and the proper mode of service to be utilized upon different classes of individuals. Service of process serves at least two purposes. It confers personal jurisdiction on the court and assures the defendant of a reasonable notice of the action. Roche v. Young Bros., 318 S.C. 207, 456 S.E.2d 897 (1995).
If personal service cannot be made on the defendant, Rule 6(d)(1), SCRMC, allows service to be made upon a person of discretion (of suitable age and reliability) who resides at the defendant's residence or to an agent authorized by appointment or by law to receive service of process. This service upon a person of discretion may be done except in cases of service upon minors and incompetents, which includes inmates (see Rule 6(d)(2), SCRMC), corporations or partnerships (see Rule 6(d)(3), SCRMC), and governmental subdivisions (see Rule 6(d)(4), SCRMC). For service in these instances, magistrates should consult the referenced subsection of Rule 6(d) and the statutes beginning at § 15-9-210 for the applicable procedure.
Regarding personal service, the South Carolina Supreme Court has held that exacting compliance with the rules is not required to effect service of process. Rather, the court must inquire whether the plaintiff has sufficiently complied with the rules such that the court has personal jurisdiction of the defendant and the defendant has notice of the proceedings. A presumption of proper service exists when the rules governing service are followed. Roche v. Young Bros., 318 S.C. 207, 456 S.E.2d 897 (1995). In a recent decision, the Court considered whether service of process was proper where a process server who had repeatedly attempted to serve process and during the attempt at issue believed the individual was inside the residence, never saw or communicated with the individual, confirmed the defendant's car was at the residence, called out his intent to leave the papers, then posted the process on the front door. The court held that the process server is not required to ram the documents down a defendant's throat and personal service of process "should not become a gang of wiles and tricks." However, there must be something more than a mere suspicion of a defendant's refusal to accept the summons and complaint before we are willing to find a defendant was sufficiently served with process by means other than strict compliance with the Rules. BB&T v. Taylor, 369 S.C.548, 633 S.E.2d 501 (2006)
Service by mail may be made by mailing a copy of the summons, complaint, and any appropriate attachments to the defendant at his last known address by certified mail, restricted delivery, return receipt requested, showing to whom and date delivered. The envelope and the return receipt shall be stamped with the docket number of the case. The "Receipt For Certified Mail" shall state the name and address of the addressee and the date of mailing and shall be attached to the original summons, and filed by the court. Reception by the court of the signed return receipt shall constitute proof of service on the indicated delivery date. The specified time period for answering and counterclaiming (30 days) shall begin to run on the first day after the date of delivery as shown on the return receipt. Rule 6(d)(6), SCRMC.
In, Patel v. Southern Brokers, LTD., 277 S.C. 490, 289 S.E.2d 642 (1982), the summons and complaint were sent to the defendant by certified mail, return receipt requested. The plaintiff could not enter proof of service because the postal service returned the unopened envelope has refused. The Court found a defendant could not avoid processed by refusing to accept registered mail known to contain a summons and complaint. Once the documents were made available to the defendant, "the mailman was not required to ram them down the defendant's throat." The court concluded the defendant had been served with process and the lower court had jurisdiction over the defendant.
If service upon the defendant cannot be accomplished by personal service or certified mail, or if no person of discretion may be found at his residence, then service may be made by publication upon the order of the magistrate. A magistrate may order service by publication on an absent defendant pursuant to § 15-9-710, where that defendant has not been found within the State after a search of due diligence. The fact of the "diligent" search must be alleged in an affidavit. The magistrate must find the existence of a cause of action against the defendant, and that the situation is one of the types enumerated in § 15-9-710. The order of publication of the magistrate should direct the publication to be made in the one newspaper, as designated by the magistrate, most likely to give notice to the person to be served, and to appear once a week for not less three weeks. It seems reasonable that the magistrate should operate in a manner consistent with the terms of § 15-9-740, the general statute concerned with the technical aspects of service by publication and in addition to the publication, require a copy of the summons and complaint be sent to the last known address of the party to be served. Note that proof of service by publication may also be made by affidavit before a notary public that the appropriate notice has been published.
The person serving process shall promptly make proof of service and deliver it to the court. If served by the sheriff, a deputy, or a constable, proof of service shall be made by certificate. If served by any other person, proof of service shall be made by an affidavit of service. If served by publication, the printer or publisher shall make an affidavit of publication, and an affidavit of mailing shall be made to the party or the party's attorney if mailing of process is permitted or required by law.
Subject to the provisions of any statute, rule, or order, a magistrate may dismiss a summons and complaint against any or all defendants without prejudice to the plaintiff if service of process cannot be obtained within 120 days of the filing of the complaint.
4. Time of Response by Defendant
The summons and complaint should be served upon the defendant as soon after issuance as is practicable, and the summons should specify the time during which the defendant must make his response to the complaint in the form of an offer of judgment, answer, and/or counterclaim. The summons should require the defendant to make his response to the magistrate within thirty (30) days from the first day after the date of service. (Rule 7, SCRMC). The court shall then deliver a copy of the response to the plaintiff in a manner provided for in Rule 8, SCRMC.
5. Offer of Judgment; Consequences of Non-Acceptance
Either party to a civil action may serve upon an adverse party an offer to allow judgment to be taken against the party for the money or property or to the effect specified in the offer with costs accrued to the date of the offer. The offer must be made no later than 10 days prior to trial. If a party makes an offer of judgment of an amount to be adjudged against him, the adverse party must consider the offer and accept, reject, or ignore it. Written notice of acceptance of the offer must be served on the adverse party. Either party may then file with the court the offer and notice of acceptance, together with proof of service, and the court shall enter judgment. An offer that is not accepted shall be deemed rejected and evidence of the offer is not admissible except in a proceeding to determine costs. (Rule 20(a), SCRMC).
If the offer of judgment is rejected or ignored, and the offeror obtains a judgment as favorable as the offer, then the offeror shall receive (1) court costs from the date of offer until the judgment is filed; and (2) as a plaintiff, 8% interest on the judgment computed from the date of the offer to the entry of judgment; or (3) as a defendant, reduction from the judgment of 8% interest computed on the amount of the verdict or award from the date of the offer to the entry of the judgment. (Rule 20(b), SCRMC).
6. Answering the Complaint
If the defendant chooses to answer, whether in writing or orally (which must be reduced to writing), he must do so within the time period prescribed in the summons (30 days) or he may be held in default. This time period is calculated by excluding the first day (day of service) and including the last day. If the last day is a Saturday, Sunday, or legal holiday, the defendant has until the next day which is not a Saturday, Sunday, or legal holiday. (Rule 3 and Rule 6(a), SCRCP).
The answer, like other pleadings in the magistrate court may be made orally, or in writing. If made orally, it must be made personally before the magistrate or court personnel and must be reduced to writing, with the assistance of the magistrate or court personnel, if the court determines such assistance is necessary. (Rule 7, SCRMC) Magistrates should not allow answers or complaints or other pleadings to be made by telephone. The answer may contain a denial of the complaint or any part of it, but must contain notice of facts constituting any defense.
The defendant, at the time of making his answer or at any time thereafter but within the time prescribed in the summons, may assert a counterclaim which arises out of the same transaction or occurrence as the plaintiff's complaint. (Rules 7 and 9, SCRMC). Whether made in the answer or thereafter, the counterclaim may be made in writing or orally (and reduced to writing), as any other pleading and must contain facts sufficient to support its assertion. The claims contained in a counterclaim shall be deemed denied by the plaintiff and no answer or reply is required to be filed by the plaintiff in response to a counterclaim filed by the defendant.
The defendant in a counterclaim may waive the excess of the claim over the jurisdictional maximum to bring it within the jurisdiction of magistrate court. If the defendant elects to waive a portion of the counterclaim, a separate action for the remainder of the may not be maintained. If the defendant does not waive the excess, the entire can shall be transferred to the circuit court and tried as a reaction to the originally filed there. (Rule 9(b), SCRMC).
The court shall deliver a copy of the answer and any counterclaim to the plaintiff in a manner provided for in Rule 8, SCRMC.
7. Objection to Jurisdiction
An objection to the jurisdiction of a magistrate may be made in the defendant's answer or at any time thereafter. An objection to the jurisdiction of a magistrate may not be lost by failure to assert it, and the failure of a defendant to appear at trial or a hearing may not be deemed a waiver of objection to the magistrates' jurisdiction. The defendant may, however, waive his jurisdictional objection by action from which an intentional waiver could be inferred
8. Setting the Trial Date
Upon the filing of the answer by the defendant, the magistrate should set the time and place of trial and deliver notice of the same on both parties to the action in a manner provided for in Rule 8, SCRMC. If the defendant has failed to answer with the time period specified by rule, the magistrate shall set a hearing date and shall deliver notice of the hearing date to both parties in a manner provided for in Rule 8 when the hearing is necessary for the entering of a default judgment consistent with Rule 11, SCRMC (see below).
9. Amendments to Pleadings
The court shall be lenient in the allowance of changes or amendments to complaints, answers, and counterclaims. Pleadings may be amended at any time before or during the trial, or upon appeal, when the allowance of the amendment would promote "substantial justice." (Rule 14, SCRMC).If the amendment is made after the joining of the issue, which is the point of the proceedings when the truth is asserted to be so by one party and denied by the other, then the court may grant a postponement. The postponement should only be granted when the court, upon oath of the adverse party, deems it necessary. There is no requirement in the statutes that requires notice to or service of the amendment on the adverse party, but magistrates should require this in fairness to the parties. Holladay v. Hodge, 84 S.C. 91, 65 S.E. 952 (1909).
10. Default Judgments and Dismissals
Either party to a civil action (plaintiff or defendant) may be held in default and judgment awarded against him for his delinquency. A defendant may be held in default if he fails to file an answer to the plaintiff's complaint within the time period prescribed in the summons, or filed an answer. That time period is thirty (30) days. If the defendant fails to file an answer to the complaint within the time period, the court should sign an order of default and notify the plaintiff. If the suit is for a liquidated sum or if the suit is for the balance on an account and a signed notarized statement of account was attached to the complaint served upon the defendant, the court should grant the plaintiff a default judgement. (Rule 11, SCRMC).
A liquidated account is where there is no dispute about the amount that is due from the defendant to the plaintiff, such as a suit on a note or a suit on an agreement for a specified sum. An example would be a note for $100 plus interest at 12% per annum from January 1, 1998. The amount due would be $100 plus $1 per month for each month from January until the plaintiff is awarded judgement. In those situations, the amount being sued for is considered "liquidated" and no hearing needs to be held to determine the amount in which the plaintiff is entitled.
A suit on an account is where the defendant had a charge account with the plaintiff or where the plaintiff sold the defendant goods or services. The notarized statement of account should itemize all charges to the account and all credits to the balance being sued on. An example of credits that should be shown are partial payments made by the defendants. The statement of account must be signed by the plaintiff and his signature must be notarized (See FORMS section of the Bench Book).
In unliquidated suits where the amount being sued for is not readily ascertainable and must be determined by the court, a damage hearing must be held when the defendant is in default. An example of this is where the defendant has damaged the plaintiff's automobile. The amount of those damages is not already established and, therefore, the plaintiff must appear at the damage hearing and prove the amount of his damages.
If the defendant has been placed in default, a damage hearing has been set for the plaintiff to come in and prove his damages, and the plaintiff fails to appear at the damage hearing after due notice, the plaintiff's complaint should be dismissed.
Likewise, if a defendant has filed an answer but fails to appear at the trial, then the trial should proceed without the defendant and the plaintiff would be permitted to prove his damages or claim against the defendant without the defendant having the chance to dispute the plaintiff's claims.
In cases where a defendant has been served, failed to file an answer within the prescribed time, placed in default, and the suit is for an unliquidated sum, the court must arrange a damage hearing for the plaintiff to prove the amount of his damages or claim. The court should notify the defendant and the plaintiff of the date and time of that hearing. The defendant is entitled to attend the hearing if he so desires. If the defaulting defendant appears at the damage hearing, he is not entitled to put forth any evidence or testimony disputing liability to the plaintiff. A defaulting party's participation at a damage hearing is limited to objecting to evidence and cross-examining plaintiff's witnesses.
If at the time of filing the complaint, a plaintiff requests that the court send him a copy of the affidavit of service of the complaint on the defendant, the court should send a copy of the affidavit of service to the plaintiff as soon after the complaint is served as possible. When a plaintiff is represented by an attorney, the attorney will generally use the copy of the affidavit of service to determine if the defendant has filed an answer within the prescribed time. If the defendant does not file an answer within that time, the attorney will then forward an affidavit of default to the court. If the amount claimed is for liquidated damages or is a suit on an account with a notarized statement of account attached, he should also forward an order of default judgment which could be signed by the Court and filed.
A notice of hearing should not be attached to the summons and complaint when it is served. At this point of the case, the court does not know if the defendant will answer and, therefore, whether a hearing is necessary. A hearing should not be set and a notice of hearing sent to the parties until the defendant has filed an answer with the court, or has failed to file an answer within the prescribed time and placed in default by the Court. This enables the plaintiff, when coming to the hearing, to know if the defendant is contesting the plaintiff's claim and, if so, what the basis for the defendant's challenge to the plaintiff's claim is, whether the defendant is making a counterclaim against the plaintiff, and what proof the plaintiff will need to bring to trial.
In situations where a defendant has filed an answer and the matter will have to be tried, the court should coordinate a trial date with the parties and then send out notices of the date and time of trial to both parties.
When a defendant files his answer with the court, he may file a counterclaim against the plaintiff. If the defendant files a counterclaim against the plaintiff, pursuant to Rule 9, SCRMC, the claims contained in the counterclaim shall be deemed denied by the plaintiff and no answer or reply is required to be filed by the plaintiff tin response to a counterclaim filed by the defendant. However, a plaintiff may reply to the counterclaim if he/she so chooses. Therefore,, a plaintiff may not be held in default for failing to reply to a counterclaim.
The chart below may be of some assistance in understanding these requirements.
|Contracts||Other (torts, etc).|
|entitled to default judgment after proof of: (1) service liquidated of pleadings and, if answer made, notice of trial date; (2) failure to answer/absence of defendant at trial.||entitled to default judgment after notice of time of hearing and proof of case at trial.|
|entitled to default judgment only upon proof of case at trial unless: (1) account itemized and itemization and affidavit of accuracy served upon opposing party with other pleadings; and proof of: (2) service of pleadings and, if answer made, notice of trial date; (3) failure to answer/absence of defendant at trial.||entitled to default judgment after notice of time of hearing and proof of case at trial.|
In the event that neither party (plaintiff or defendant) appears at the trial date or has requested a continuance, then all claims and counterclaims should be dismissed by the court.
Once a default judgment has been entered against a party, notice of default judgment shall be promptly sent to the defendant. A defendant must file a request for a new trial within five (5) days from the date he actually receives his notice of judgment (see notice of default judgment and forms). ( Rule 19, and § 22-3-1000; Ishmell v. State Highway Dept., 264 S.C. 340, 215 S.E.2d 201 (1975)). If the defendant makes a request for new trial within the five days after he actually receives notice of judgment, it is within the discretion of the trial judge to decide whether or not a new trial will be granted.
11. Testimony De Bene Esse
The taking of testimony "de bene esse," or in anticipation of future need, is a process of preserving testimony which otherwise might not be available at trial. The testimony once taken is not automatically a part of the record and only becomes so upon its being offered at trial if the witness is unavailable for examination at the time. It may be offered by either party to the action, regardless of who requested its being taken, but may not be objected to by the offering party. Baker v. Metropolitan Life Insurance Company, 184 S.C. 341, 192 S.E. 571 (1937). The following paragraphs describe the process of taking such testimony, as set out in Rule 23(f), SCRMC and § 22-3-940.
If it appears in the judgment of the magistrate that the attendance and testimony of any witness as requested by a party may not be had due to 1) absence 2) extreme age, 3) sickness or infirmity, or 4) the fact that the witness may be a resident of another county or outside the territorial jurisdiction of the magistrate, the magistrate may take the examination of the witness in writing or allow it to be done by another magistrate within or outside of the State, or by any other officer authorized by law to administer oaths. The "other officers authorized by law" in addition to magistrates include circuit judges, clerks of court, notary publics of this State as well as chancellors, justices or judges of a Supreme or superior court, mayors or magistrates, of any state of the United States, or of Great Britain or Canada. (Rule 28 SCRCP).
All parties to an action should be given reasonable notice of the time and place of examination to allow their presence at the taking of the testimony. The examination of the witness should be conducted by the magistrate, but either party may submit questions to the magistrate to be included in his examination upon reasonable notice to the opposing party, to allow the other time to prepare their own questions if they so desire. At the end of the examination of the witness, the magistrate, if he wishes to do so, may allow the parties present to submit further questions.
When the examination is taken by one other than the magistrate who will hear the action, it should be sealed, with the title of the case endorsed on its face, and conveyed by one having no interest in the case to the magistrate with jurisdiction over the case, or mailed to him with the postage prepaid.
Rule 14, SCRMC, provides that the court shall be lenient in the granting of continuances of trials for good cause shown when necessary to serve the ends of justice. Continuances are granted at the discretion of the magistrate. They may be ordered by the court on its own initiative if required by circumstance; for instance, if the court has another trial in progress at the time set for trial or if an amendment to the pleadings should necessitate a postponement. A continuance may also be granted on motion by a party to the suit, but the motion must be made for reasonable cause and at the earliest practical moment after circumstances justifying the continuance arise. Circumstances which might justify a continuance are illness of a witness or party (or attorney for one of the parties), or the unexpected absence of a witness at the time for trial, or the agreement of the parties to a continuance, or if one of the attorneys has another trial set for the same time.
If one of the attorneys in the action is a legislator, and seeks a continuance, the continuance should be granted whenever the attorney has satisfied the conditions of the Order issued by the Chief Justice dated April 21, 2010 and amended my an Order dated June 21, 2013. The order provides that “lawyers who are members of the General Assembly are granted absolute protection from being called to a trial, deposition or hearing in any court of competent jurisdiction of this State or any administrative tribunal of this State from the first Tuesday in January until the third Thursday in June or until thirty (30) days after the General Assembly completes all votes on the General Appropriation bill, including but not limited to votes on vetoes of the General Appropriation bill, whichever is later." Further, lawyer-legislators are similarly protected during any special or called session after the regular session.” See Orders Section.
The magistrate may not continue a non-jury civil case beyond ninety (90) days from date of filing or a civil trial in which a jury trial has been requested beyond one-hundred twenty (120) days from the date of filing without good cause having been shown the court. (See Order of the Chief Justice dated February 14, 2011).
13. Summary Judgment
After the filing of a civil case and prior to the actual trial, you may occasionally receive a motion for summary judgment, often filed by parties represented by an attorney. Rule 56, SCRCP, which is made applicable to magistrate's court by Rule 81, SCRCP, allows the plaintiff or defendant, at any time after the expiration of 30 days from the commencement of the action or after service of a motion were summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in his favor upon all or any part of the action. The motion shall be served at least 10 days before the time fixed for the hearing. The purpose of summary judgment is to expedite disposition of cases which do not require the services of a fact finder. George v. Fabri, 345 S.C. 440, 548 S.E.2d 868 (2001). Summary judgment is proper when, after reviewing the motion, supporting affidavits, and the pleadings, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment is appropriate, the evidence and its reasonable inferences must be viewed in the light most favorable to the nonmoving party. Baughman v. American Telephone and Telegraph Company, 306 S.C. 101, 410 S.E.2d 537 (1991). Summary judgment is a drastic remedy and should be granted only upon clear and convincing evidence. Additionally, even where there is no dispute as to the evidentiary facts, but only as to the conclusions are inferences to be drawn from them, summary judgment should not be granted. Hamilton v. Miller, 301 S.C. 45, 389 S.E.2d 652 (1990). If, after a hearing, the court determines that summary judgment is appropriate, an order to that effect ending the case should be issued. If the court determines summary judgment is not appropriate, the case should proceed to trial. The denial of a motion for summary judgment is not directly appealable. See Walton v. Mazda of Rock Hill, Op. No. 4306 (S.C. Ct. App. Filed Oct. 19, 2007), where the S.C. Court of Appeals held that Rule 56, SCRCP, relating to summary judgments, applies to magistrates court.