81 S.E. 476 | S.C. | 1914
April 22, 1914. The opinion of the Court was delivered by This is an appeal from an order sustaining a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
Paragraphs 3 and 4 of the complaint, together with the grounds of demurrer, will be incorporated in the report of the case.
In the case of Lawton v. Railway,
The case of Touchberry v. Railway,
The appellant's attorneys do not dispute these principles, but contend that the allegations of the complaint are sufficient to show that the plaintiff had acquired a right by grant or prescription.
The complaint in the case of Lawton v. Railway,
That case is conclusive of the question under consideration. After using the language just quoted, the Court proceeded as follows: "But this Court is always reluctant to dismiss a complaint for the want of allegations necessary to show that plaintiff has a cause of action, especially where, as in this case, there is a manifest omission in the complaint. For while it is true that cases must be decided upon the facts as they appear in the record, and, if there is any omission, inadvertent or otherwise, in such record, it is incumbent upon the appellant to supply the same before the case is submitted for hearing, yet, recognizing the fact that any person, even the most careful, is liable to make mistakes or omissions, we are disposed to allow the appellant an opportunity, if he can, to repair such faults. To this end we will allow the appellant an opportunity to apply to the Circuit Court for leave to amend his complaint, if he shall be so advised."
A similar opportunity should be afforded the plaintiff in this case.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed, with leave, however, to the plaintiff to apply to that Court for permission to amend his complaint, provided that such application be made as soon as practicable after the remittitur is filed in that Court. *239