Bomar v. Means

47 S.C. 190 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Justice Pope.

This cause was before this Court on a demurrer to the complaint, which, it seems, was filed in 1891, and the judgment of the Circuit Court dismissing such demurrer was affirmed. See Bomar et al. v. Means et al., 37 S. C., 520. At the July term, 1895, of the Court of Common Pleas for Spartanburg County, the plaintiffs moved, upon due notice, for an order allowing them to amend and supplement their complaint herein, as shown by their proposed amended and supplemental complaint, copies of which were served with the notice of the motion, and the motion came on to he heard by his Honor, Judge Benet, who, in a short order, allowed the same, with leave, however, to the defendants to answer the same twenty-five days after the date of his order, which was dated 16th August, 1895. From this order of Judge Benet all the defendants, except H. F. Means, now appeal to this Court. The Reporter will set out in the case the original complaint, a copy of which will be found in 37 S. C., 521, and also the amended and supplemental complaint, as well as the grounds of appeal from Judge Benet’s order. An inspection of the two instruments will show that the plaintiffs had referred in their original complaint to an action brought by the defendants, except H. F. and A. G. Means, sr., from which an appeal was pending in the Supreme Court of this State. The proposed supplemental complaint avoids any further reference to that appeal as pending, as it had been decided adversely to the defendants here, but sets out what was the result of such action after the appeal had been dismissed. By way of amendment, it states the facts more logically, and avoids any contest with H. F. Means, by omitting the statement that he had agreed to reduce the amount of his mortgaged debt, and also it amends the statement as to the consideration between A. G. Means, sr., and Robert Beaty, by alleging, “that by far the greater part of the debts alleged to have been due from the defendant, Albert G. Means, sr., to the said Robert Beaty, * * * was and is pretensive and fraudulent,” rather than as is stated in the original complaint, “that the debts alleged to have been due * * * were and are wholly pretensive.and fraudulent,” &c.

1 It seems to- Us that section 195 of our Code of Procedure was designed to give to the Circuit Courts just such power as was exercised by Judge Benet in allowing this supplementary complaint, and also that the section 194 fully empowered him -to grant the amendments. The first exception must be overruled. It may be that a very different measure of relief may be accorded the plaintiffs under their supplemental complaint, while the cause of action has not been changed thereby, still the relief flowing out of the cause of action may be increased by having a new point given to it. If this be so, then the objection embodied .in the first exception must fail.

2 As to the second exception, we must frankly say that the amended and supplemental complaint is entirely consistent with and in aid of the case as is set out in the first complaint. This is readily seen by a comparison of the original with the new complaint. The purpose of the first complaint was declared in our former decision in 37 S. C., 520, and, therefore, need not be repeated here.

3 As to the third exception, we overrule it, for in the case itself no ground appears to give color to the charge of inexcusable delay on the part of the plaintiffs — without for a moment attaching any blame to the defendants for contending in Court for their rights as they conceive them to be, still that contention on their part is a part of their responsibility, and not justly chargeable to the plaintiffs. In order that our meaning may be made clear on this point, we will state that the records of our courts show that the delay is not wholly to plaintiffs’ charge, but also rests upon the defendants in part.

4 So as to the 4th, 5th, 6th, and 7th exceptions — they must be overruled. Because, as to the 4th, we find in the agreed statement of facts submitted with this appeal, that a copy of the supplemental and amended complaint was served along with the notice of motion, and no such question seems to have been raised before the Circuit Judge.

5 Because, as to the 5th, we do not find any reference in the case for appeal to any such question being raised before the Circuit Judge; and besides, the action, as is shown by each complaint, both original and new, is on the equity side of the Court.

6 Because, as to the 6th, the same cause of action is set up in each of the complaints.

7 Because, as to the 7th, it does not appear in the case for appeal that these facts set up by plaintiffs in their new complaint were known to them when the original complaint was filed. Such could not have been the case as to the result of appeal to this Court, for it was not then decided, and such is true of other facts set out in the supplemental and amended complaint.

It is the judgment of this Court, that the order appealed from be affirmed, and the cause be remanded to the Circuit Court for such further proceedings as are necessary.