70 S.E. 316 | S.C. | 1911
February 27, 1911. The opinion of the Court was delivered by *564 This is an appeal from an order, affirming judgment rendered by a magistrate.
The following statement appears in the record:
"The plaintiff on February 25th, 1910, brought an action against the defendant in magistrate's court for $87.39, on an account, as will more fully appear from copy of complaint. The defendant demurred on the ground that it appeared upon the face of the complaint, that E.F. Thomas was a proper and necessary party defendant, the account sued on being a joint liability of E.F. Thomas and defendant. The magistrate overruled the demurrer. The defendant for answer denied each and every allegation of the complaint, and for a further defense, alleged that the plaintiff had agreed to release defendant from all liability, looking to defendant's partner for payment, defendant's partner having assumed all debts of the firm of Thomas Hodges.
"The magistrate found for the plaintiff, for the sum of $87.39. Defendant appealed to the Court of Common Pleas, upon various exceptions, all of which were overruled by his Honor R.C. Watts, and the judgment of the magistrate was affirmed."
The complaint, a copy of which was served on the defendant, was as follows:
"By B.F. Wilson, Esq., magistrate in and for said county of said State.
"To B.H. Hodges, a member of the firm of Thomas Hodges, Starr, S.C.
"Complaint having been made unto me by Aug. Wright Co., a corporation under and by the laws of the State of Virginia, and having its principal place of business at Petersburg, in the State of Virginia, that you, B.H. Hodges, one of the firm of Thomas Hodges, doing business at Starr, in the county of Anderson, in the State of South Carolina, the other partner having been discharged in bankruptcy, are indebted to it in the sum of eighty-seven and 39-100 ($87.39) on an account, an itemized, verified statement of *565 which is hereto attached, which you refuse to pay, and from which sum the said Aug. Wright Co., a corporation as aforesaid, asks judgment against the said B.H. Hodges."
The appellant's exceptions will be set out, in the report of the case.
First Exception. Section 368 of the Code, relative to an appeal from a judgment rendered by a magistrate, provides that "upon hearing the appeal, the appellate court shall give judgment, according to the justice of the case, without regard to technical errors and defects, which do not affect the merits."
In the first place, even conceding that there was error, it was merely technical, and did not affect the merits of the case. And, in the second place, the ruling was not prejudicial to the appellant, as he was not thereby deprived of the right to rely upon any defense, which he could have interposed, if E.F. Thomas had been joined as a party defendant.
Second Exception. This exception cannot be sustained for two reasons: (1) It is technical in its nature, and does not involve the merits; and (2) the facts therein mentioned do not seem to have been in dispute.
Third Exception. It appears upon the face of the proceedings, that the witnesses were nonresidents; and it has not been made to appear that the failure to give the notice was prejudicial error.
Fourth Exception. Admissions made by the appellant show that it was unnecessary to introduce the bills of lading in evidence to prove the plaintiff's case.
Fifth Exception. It was not necessary for the plaintiff to prove that E.F. Thomas had been discharged in order to establish their cause of action against the defendant. Therefore, even if there was error, it was not prejudicial. *566 Sixth Exception. This exception is disposed of, by what was said in considering the fourth exception.
Seventh Exception. In the first place, the magistrate was not requested to rule upon the question mentioned in the exception. And, in the second place, it does not appear from the record whether E.F. Thomas filed his petition in bankruptcy, to be discharged from his partnership indebtedness, his individual debts, or from both; or, that he was discharged at all.
Eighth Exception. What was said in considering the seventh exception, shows that this exception cannot be sustained.
Ninth Exception. By reference to the record it will be seen, that there was ample testimony tending to establish the cause of action alleged in the complaint.
Tenth Exception. This exception is also disposed of by what was said in considering the seventh exception.
Appeal dismissed.
