Best v. Sanders

22 S.C. 589 | S.C. | 1885

Opinion by

Mr. Justice McGowan,

A suit for partition was commenced in 1854, and Chan. Dunkin, in February, 1855, declared the right of the parties, and ordered a writ of partition to issue. The writ was issued, but no return was ever made because of disagreement among the commissioners. In February, 1856, the cause was marked “ended” on the-docket by Chan. Johnston, and all the papers were put into a package, labelled and entered by its title on the “General Index.” The affidavits now submitted show that there had been no partition, and no proceedings subsequent to the issuing of the writ.

This was a motion made before Aldrich, J., at Barnwell, in May, 1883, by the original plaintiff (who was thep an infant, who married in 1858, and attained her majority in 1860) for leave to file and serve a supplemental complaint, the original parties and the heirs of those since deceased being named as parties in the supplemental complaint, and notified of the motion. The Circuit judge refused the motion.

On appeal this court held that the evidence showed that the entry on the docket, if not a mistake, was premature, and that the case was never ended; that under the old equity practice, the right to revive would exist without any well defined limit in point of time, and that it might have been accomplished by a bill in the nature of a bill of revivor and supplement; that this right has been substantially preserved by the code of procedure (§ 142); that this is a question relating merely to pleading, and does not affect the merits, but there is .no authority for applying the statute of limitations to the right to institute such a proceeding, although the relief therein demanded may be barred.

Judgment reversed.