Arthur v. Allen

22 S.C. 432 | S.C. | 1885

The opinion of the court was delivered by

Mr. Justice McIvbr.

The statement of the facts in the decree of Judge Fraser, from which this appeal is taken, is so full and clear as to supersede the necessity of making any further statement here.

The first point which we propose to consider is that raised by the eighth ground of appeal. It may be conceded that a summons cannot be amended without leave of the court, and the practical inquiry here is, has such leave been granted ? The order of Judge Hudson was, “That James C. F. Sims be made a party defendant herein ; that the plaintiff have leave within twenty days from the rising of the court to amend his complaint by alleging,” &c. Now, if it be true, as it undoubtedly is, that the proper mode of making a party defendant to a case is by the service of a summons upon him, it would seem to follow necessarily that where there is an order requiring a certain person to be made a party defendant, such order implies that the summons in the case is to be amended by inserting his name and serving a copy thereof so amended upon such person. While, therefore, the order in this case did not in words authorize an amendment of the summons by inserting therein the name of Sims as a party defendant, yet as it did require that he should be made a party defendant, it necessarily implied that the summons should be so amended, and then the order proceeded to provide for the amendment of the complaint by inserting certain additional allegations.

The ninth ground of appeal seems to have been taken under a misapprehension of the real facts of the case, though the papers as printed in the “Case,” would seem to warrant the assumption upon which that ground rests. The summons as printed did appear to be a copy and not an original, and there was nothing in the “Case” to show that there was any original amended summons; but from the original records introduced at the hearing by consent, it does appear that there was an original amended summons issued and served upon Sims, and the service thereof accepted by the attorneys representing the other appellants. It is true that the amendment of the summons was not made by inserting the name of the additional party authorized in the summons first issued, with an appropriate reference to the order authorizing such an amendment, as perhaps would have been the better practice, inasmuch as the rule seems to be well settled that there can be but one original summons in a case, and that instead thereof a transcript of such original summons was made in which the name of Sims was added as an additional defendant, and was styled “amendment to supplemental summons and complaint, making J. O. F. Sims a party defendant,” and marked “original”; but this departure from what would have been a better practice is merely formal and cannot have the effect of annulling the paper. It appears to us, therefore, that the summons was substantially amended, and that this was done by virtue of an order which necessarily implied leave to make such amendment.

The next position which we shall notice is “that there is no form of proceeding under the code by which Sims can be made a party to this original bill of complaint.” If this be so, then certainly there was a very strange and unfortunate omission made in the code. But we do not think any such omission was made. The code, as originally adopted, (section 34,) provided for the transfer of all actions then pending in the Court of Chancery to the Court of Common Pleas, to he there “heard, tried, and determined, with all rights respected and preserved in the same manner as if originally brought there.” It also provided (section 465) that the provisions of the code should apply “to future proceedings in actions or suits heretofore commenced, and now pending, as follows: (1) If there have been no pleading therein, to the pleadings and all subsequent proceedings. (2) Where there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent proceedings.” And in section 471, after repealing all statutory provisions inconsistent with the provisions of the code, it proceeded to declare as follows: “And all rights of action given or secured by existing laws may be prosecuted in the manner provided by this act. If a case shall arise in which an action for the enforcement or protection of a right or the redress .or prevention of a wrong cannot be had under this act, the practice heretofore in use may he adopted so far as may be necessary to prevent a failure of justice.”

These provisions manifestly show that the intention of the legislature yas that there should he no obstacle of any kind thrown in the way of parties w'ho had commenced their actions in the Court of Equity to prevent them from proceeding to enforce their rights according to the forms of law, notwithstanding the abolition of the court in Avhich they had originally instituted their actions and the transfer of the same to another court in which the forms of proceeding had been materially altered, and that for this purpose they might, in all subsequent steps, adopt the new forms of proceeding; hut if that was impracticable, then, in order to prevent a failure of justice, they might resort to the former practice. We do not see how the legislature could have, in'general and comprehensive terms, without descending to innumerable details, better expressed their intention that no such result should follow the change in the tribunal and in the modes of proceeding, as that which appellants contend have followed such change. Here was a proceeding pending in the Court of Equity at the time that court was abolished, which was, by the provisions of the code above referred to, transferred to the docket of the Court of Common Pleas to be there “heard, tried, and determined, with all rights respected and preserved in the same manner as if originally brought there;” but owing to the death of some of the parties it could n.ot be determined without bringing the representatives of such deceased parties before the court. How was- this to be done ? If there had been no change of the law, it would have been by a bill of revivor, upon the filing of which subpoena ad respondendum would have issued to bring before the court the representatives of the deceased parties, and this of course would have' involved the necessity for further pleading. But since the code the action would not abate, and all that was necessary in order that the rights of the parties should be respected and preserved was to continue the action against such representatives, and the mode of doing this is provided for by the code. The parties having the right to proceed with their action notwithstanding the death of some of the necessary parties, that right is “preserved” to them, after the change in the mode of proceeding and the transfer of the case to another court “in the same manner as if originally brought there.” Now, if the case had been originally brought in the Court of Common Pleas after the adoption of the code, there can be no doubt that the manner in which they had a right to proceed with their action would have been that prescribed by the code. Two modes are prescribed, one of which by motion, with notice of course to the representatives of the deceased parties, who are thus to be brought in, is applicable within one year after the death of a party, and the other by supplemental complaint if more than a year has elapsed (Code, § 142; old Code, § 144); and no leave is necessary to file such supplemental complaint. Parnell v. Maner, 16 S. C, 348.

But it is said that there was no necessity or authority for issuing a summons with such supplemental complaint. The object was to make the representatives of the deceased persons parties to the action, andas the only mode of effecting that object is by the service of a summons, unless in the case where the application is made by motion within a year from the death of such parties, it would seem to follow necessarily that a summons must issue, or such representatives never would become parties. It does not appear, therefore, that the objections urged to the validity of the summons of June, 1882, and the supplemental complaint issued thereon, can be sustained. More than a year had elapsed from the .death of the several parties, and hence the action could not be continued by motion, and only by supplemental complaint, for the filing of which no leave of the court was necessary, as we have seen. The case being thus properly pending in court, and it becoming necessary to amend by making a new party by reason of circumstances occurring since the commencement of the action, it became necessary to obtain an order for -that purpose and for filing an amended supplemental complaint under section 198 of the code (old code, § 200), and hence the propriety of, and necessity for, the order of Judge Hudson of April 27, 1888, as well as the order of Judge Kershaw of May 17, 1883, amending and extending the same.

Again, it is urged that even granting that the summons of June, 1882, and the supplemental complaint issued thereon were regular and proper, yet there was no order to revive, and such an order was necessary before any order to amend could be granted. Whether an order to revive was necessary under the code may, perhaps, be doubted; but even if such order be necessary, we agree with the Circuit judge that such order may be taken at the hearing. See the authority cited by him, 3 Dan. Ch. Pl. & Pr., 1709.

Finally, it is urged that the original action was no longer pending at the time the effort wras made to revive it in June, 1882, and there was therefore no suit to be revived. This position, as we understand it, is based solely upon the decision of Judge Thomson in the caso of Suber v. Allen, 13 S. C., 317. The full record in that case is not before us, and all that we know of it is what is said in the decree of Judge Fraser, and what appears in the case as reported. It seems that one of the defendants in that case, who does not appear to be a party to this case, demurred to the complaint filed by Mr. Súber in that case upon two grounds: 1st. “That there is another action pending between the same parties for the same cause of action.” 2d. “Because different causes of action were improperly joined.” Judge Thomson overruled the first ground and sustained the second, and upon appeal his judgment was affirmed. As Judge Fraser very properly says, it does not, by any means, follow from this that Judge Thomson decided that the present action was not then pending. Indeed, there is nothing here to show that the present action was referred to. What allegations were made in Mr. Suber’s complaint, all of which would be admitted by the demurrer for the purposes of that case, we are not informed of; hut whether such allegations would be admitted by the parties to this case is another matter. The opinion of the Supreme Court in Suber v. Allen was confined solely to the consideration of the second ground of demurrer, and the first is not even mentioned, except in the statement of the case by the reporter. We concur, therefore, with the Circuit judge in holding that this position of appellants cannot be sustained.

The judgment of this court is, that the judgment of the Circuit Court bo affirmed.