South Carolina General Assembly
117th Session, 2007-2008

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Bill 1221

Indicates Matter Stricken
Indicates New Matter


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

Indicates Matter Stricken

Indicates New Matter

COMMITTEE AMENDMENT ADOPTED

March 27, 2008

S. 1221

Introduced by Senators Hutto and Massey

S. Printed 3/27/08--S.    [SEC 3/28/08 2:23 PM]

Read the first time March 20, 2008.

            

A BILL

TO AMEND ARTICLE 3, CHAPTER 3, TITLE 22 OF THE CODE OF LAWS OF SOUTH CAROLINA, 1976, AS AMENDED, RELATING TO CIVIL PROCEDURE IN MAGISTRATES COURT, SO AS TO DELETE SECTIONS THAT HAVE BEEN PROVIDED FOR BY THE SOUTH CAROLINA RULES OF MAGISTRATES COURT AND TO RENAME THE ARTICLE TO CONFORM WITH THE REVISIONS.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    Article 3, Chapter 3, Title 22 of the 1976 Code is amended to read:

"ARTICLE 3

CIVIL PROCEDURE GENERALLY

FILING AND EXECUTION OF JUDGMENTS

Section 22-3-110.    The provisions of Title 15 respecting forms of actions, parties to actions, the times of commencing actions and the service of process upon corporations and the provisions of Title 19 respecting the rules of evidence shall apply to the courts of magistrates.

Section 22-3-120.    When twenty-five dollars or more is demanded, the complaint shall be served on the defendant not less than twenty days and when less than that sum is demanded not less than five days before the day therein fixed for trial. But if the plaintiff shall make out that he is apprehensive of losing his debt by such delay and the magistrate considers that there is good reason therefor (the grounds of such apprehension being set out in an affidavit and served with a copy of the complaint) he may make such process returnable in such time as the justice of the case may require.

Section 22-3-130.    Service of summons upon an absent defendant in any case in a court of a magistrate shall have the same binding force and effect as such service has in cases in the courts of common pleas.

Section 22-3-140.    A magistrate may, in an action brought in his court and within his jurisdiction, grant an order of publication against an absent defendant in the same manner and to the same extent as authorized in Section 15-9-710. The time for such publication shall be once a week for not less than three weeks.

Section 22-3-150.    The pleadings in the courts of magistrates are:

(1) The complaint by the plaintiff; and

(2) The answer by the defendant.

Section 22-3-160.    The complaint shall state, in a plain and direct manner, the facts constituting the cause of action.

Section 22-3-170.    The answer may contain a denial of the complaint or any part thereof and also a notice, in a plain and direct manner, of any facts constituting a defense or counterclaim.

Section 22-3-180.    Either party in a court of a magistrate may demur to a pleading of his adversary or to any part thereof when it is not sufficiently explicit to enable him to understand it or when it contains no cause of action or defense, although it be taken as true. If the court deem the objection well founded, it shall order the pleadings to be amended and, if the party refuse to amend, the defective pleading shall be disregarded.

Section 22-3-190.    The pleadings may, except as otherwise provided, be oral or in writing. If oral, the substance of them shall be entered by the magistrate in his docket. If in writing, they shall be filed by him and a reference to them shall be made in the docket. Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended.

Section 22-3-200.    The pleadings in a court of a magistrate may be amended at any time before or during the trial or upon appeal when by such amendment substantial justice will be promoted. If the amendment be made after the joining of the issue and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amendment the payment of costs to the adverse party.

Section 22-3-210.    When any civil action cognizable by a magistrate shall be brought in the wrong county the mere failure of the defendant to appear shall not be deemed a waiver of any objection such defendant may have to the jurisdiction of the magistrate. But nothing herein contained shall be construed to prevent any positive action of such defendant from which an intention to waive the jurisdictional objection might be inferred from operating as such waiver.

Section 22-3-220.    The defendant in a court of a magistrate may, on the return of process and before answering, make an offer in writing to allow judgment to be taken against him for an amount stated in such offer, with costs. The plaintiff shall thereupon, and before any other proceeding shall be had in the action, determine whether he will accept or reject such offer. If he accept the offer and give notice thereof in writing, the magistrate shall file the offer and the acceptance thereof and render judgment accordingly. If notice of acceptance be not given and if the plaintiff fail to obtain judgment for a greater amount, exclusive of costs, than has been specified in the offer he shall not recover costs but shall pay to the defendant his costs accruing subsequent to the offer.

Section 22-3-230.    Either party to a suit before a magistrate shall be entitled to a trial by jury.

Section 22-3-260.    A variance between the proof on the trial and the allegations in a pleading shall be disregarded, as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby.

Section 22-3-270.    When a defendant in a court of a magistrate in an action on contract does not appear and answer the plaintiff may file proof of the service of the summons and complaint or of the summons on one or more of the defendants and that no answer or demurrer has been served upon him. When the action is for the recovery of money only, judgment may be given for the plaintiff by default if the demand be liquidated. If (a) the claim be unliquidated, (b) the plaintiff itemize his account and append thereto an affidavit that it is true and correct and no part of the sum sued for has been paid by discount or otherwise, (c) a copy of such account and affidavit be served with the summons on the defendant and (d) the defendant shall neither answer nor demur, the plaintiff shall have judgment for the sum sued for as in the case of liquidated demands. In all other cases when the defendant fails to appear and answer the plaintiff cannot recover without proving his case.

Section 22-3-280.    In an action or defense in a court of a magistrate founded upon an account or an instrument for the payment of money only, it shall be sufficient for a party to deliver the account or instrument to the court and to state that there is due to him thereon from the adverse party a specified sum which he claims to recover or set off.

Section 22-3-290.    The court may at the joining of the issue require either party, at the request of the other, at that or some other specified time to exhibit his account or state the nature thereof as far as may be in his power and, in case of his default, preclude him from giving evidence of such parts thereof as shall not have been so exhibited or stated.

Section 22-3-300.    A magistrate, on the demand of a party in whose favor he shall have rendered a judgment, shall give a transcript thereof which may be filed and docketed in the office of the circuit court of the county in which the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the abstract of judgments and from that time the judgment shall be a judgment of the circuit court, but no sale shall be made under any execution issued upon such judgment in the circuit court until the time for appeal from the judgment in the magistrates court has expired, nor pending such appeal. If the judgment is set aside in the magistrates court, it shall have the effect of setting aside the judgment filed and docketed in the circuit court. The filing and docketing of such transcript in the circuit court shall not affect the right of the magistrate to grant a new trial. A certified transcript of such judgment may be filed and docketed in the clerk's office of any other county and with like effect in every respect as in the county in which the judgment was rendered.

Section 22-3-310.    Execution may be issued on a judgment heretofore or hereafter rendered in a magistrates court at any time within three years after the rendition thereof and shall be returnable sixty days from its date. But no sale shall be made under any such execution until after the time for appeal has expired, nor pending such appeal, and in cases for the claim and delivery of personal property when bond for the property claimed has been properly given by either party, the status of such property shall not be changed until after the expiration of the time for appealing has expired or until such appeal has terminated.

Section 22-3-320.    If the judgment be docketed with the clerk of the circuit court, the execution shall be issued by him to the sheriff of the county and have the same effect and be executed in the same manner as other executions and judgments of the circuit court."

SECTION    2.    This act takes effect upon approval by the Governor.

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