13 S.C. 491 | S.C. | 1880
The opinion of the court was delivered by
This was an action by George H. Coleman against Philip Heller and sureties on the bond of the said
1. “ Because it is respectfully submitted that his Honor erred in refusing to grant the motion f( r a new trial.
2. “ Because his Honor erred in ordering S.. A. Coleman to be substituted as plaintiff, a substitution not being in the nature of an amendment.
3. “ Because his Honor erred in refusing motion of defendant’s counsel for twenty days time to answer the complaint of 8. A." Coleman.”
The plaintiff made a motion 'to dismiss the appeal on the ground that no exceptions were taken to the rulings of the presid-
The act of 1878 alters and amends the law in relation to appeals from the Circuit Court to the Supreme Court in the-following particulars:
The first section allows ten days after the rising of the Circuit Court at which the case is tried “ to except to the rulings of the presiding judge by furnishing a copy of such exceptions to the presiding judge, and by serving them on the attorney of the respondent Avithin the time above limited.” The only effect of this provision is to allow the same time — ten days — for excep- ■ tions in all cases as were before allowed in cases tried by the ■court. This, however, does not repeal the laAV requiring exceptions to be made, but merely, in a certain class of cases, extends the time within which they may be taken, and in such cases prescribes the mode and manner in which it shall be done. The section is not mandatory, but permissive. The words are: “ Exceptions for the purpose of appeal to the Supreme Court may be taken,” &c. The exceptions, as heretofore, may still be taken at the trial, and, if so taken, copy of such exceptions need not be served under the act.
The second section of the act of 1878 does alter the law in relation to appeals, by requiring tfiat in all appeals to the Supreme 'Court the appellant or his attorney shall, within ten days after Avritten notice of the order, decree or judgment appealed from
In this case no question arises under the second section of the act, for the notice of intention to appeal was given within the ten days prescribed, and the objection that “ the case ” was not served within the thirty days required, was not insisted on. The objection is that the first section has not been complied with in regard to exceptions. It is insisted that no copy of exceptions to-the rulings of the presiding judge were served within ten days, as required by the act. We have already seen that the first section was only meant to cover the case where no - exceptions were taken at the trial. If they were so taken, then service of copy of exceptions under the act was unnecessary. Did the defendant, at the trial, except to the rulings of the presiding judge? To make objections sufficient to sustain an appeal, .it is not necessary that the word “exceptions” should be used. The better practice, undoubtedly, is to give the court information at the time that the party “excepts,” and have it noted on the record, so that there can be no question about it; but it has been held that “when it appears from the record that the judge was apprised of the intention to rely on the propositions advanced by way of exceptions, that is sufficient to constitute an exception, though there is no formal request to note an exception.” Fox v. Railroad, 4 S. C. 543; South Carolina R. R. Co. v. Wilmington, Columbia & Augusta R. R., 7 S. C. 410; Clarke v. Harper, 8 S. C. 257. Here the propositions, by way of exceptions, were positive and unmistakable. The defendants moved for a non-suit. When that failed they moved for further time to answer, and, after the verdict against tlieir protest was rendered in favor of S. A. Coleman, they moved for a new trial. We think it appears from the record that the judge was “ apprised of the
We will not consider the first ground of appeal that it was. error to refuse the motion for a non-suit, as that is involved in the exception as to the substitution of the name of S. A. Coleman, as plaintiff, for that of her husband, George H. Coleman-Upon the subject of mistakes in pleadings and amendments, the code of procedure provides as follows:
“Section 193. Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate' amendment without costs.
“ Section 194. Where, however, the allegation of the causes-of action or defence to which the proof is directed is not proved,, not in some particular or particulars only, but in its entire scope- and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof.
“Section 196. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper,, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting the name of a party,, or a mistake in any other respect, or by inserting other obligations material to the case, or when the amendment does not change-substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.” Gen. Stat. 611-12.
It was in the discretion of the Circuit judge at the trial, in furtherance of justice, to grant an order striking out the name of one person and inserting that of another as plaintiff;- but we think a change so fundamental, which, in fact, made a new case, was not merely correcting a variance, but making an important amendment, and could not be made without changing substantially the defence, which, upon the same state of facts, might be good against one plaintiff and not maintainable against another. Cleveland et ux. v. Cohrs, ante p. 397.
These provisions of the code, taken together, do not seem to.
In the case of Jennings v. Springs, Bail. Eq. 181, Chancellor De Saussure had granted an order permitting the complainant, Jennings, to amend his bill by substituting the names of the executors of Pressley for his own, the bill having been filed by him as their agent, and his own name erroneously inserted. Appeal was taken, and the Court of Appeals held that it was within the discretion of the court to permit a bill to be amended by substituting the name of a new for an original complainant, even after answer filed, but upon reasonable terms. And they further held, in that ease, that it should be upon payment of all costs up to the time of the amendment, as well as of the amendment itself. We think the denial of the terms that the defendants should have reasonable time to answer the case as standing in the name of the new plaintiff, was error.
The judgment is set aside and a new trial granted.