38 S.C. 471 | S.C. | 1893
The opinion of the court was delivered by-
■ The plaintiffs, having commenced their action to recover the sum of $399, alleged to be due by the defendant for lumber sold and delivered to him by the plaintiffs, applied for and obtained from the clerk of the Court of Common Pleas an order for the arrest of the defendant. The defendant having been arrested by virtue of said order, and having entered into bond as thereby required, gave notice of a motion based upon affidavits, copies of which accompanied the notice, as well as upon all the papers filed and served in the action, to vacate the order of arrest and for such further orders as may be just and proper. The plaintiffs, before the time for hearing the motion arrived, served additional affidavits to be heard on the motion, with a “statement that, if defendant wished to submit affidavits by way of rebuttal or rejoinder, they would not be objected to.” The motion came on for a hearing before his honor, Judge Kershaw, when defendant objected to the additional affidavits served by the plaintiffs, in so far as they were not in reply to the facts stated in the affidavits served by defendant, and his honor granted the following order, which is copied precisely as it appears in the “Case,” omitting the title of the cause: “On reading and filing notice of affidavits- of F. P. Cardue, J. L. Farmer, and S. Bounds, and on the pleadings and proceedings in this action, on motion of Dargan & Coggeshall, counsel for defendant, after hearing W. W. Harllee, Esq., for plaintiffs, ordered, that the order of
From this order plaintiffs appeal upon the following grounds: 1st. Because the allegations in the affidavit of E. C. Commander, one of the plaintiffs in the action, attached to the complaint, made out a prima facie case of fraud as alleged, and the clerk was not in error in making the order of arrest. 2d. Because the affidavits served by plaintiffs, and heard by the court in reply to those of defendant, were strictly in reply to those of the defendant, and stated no new matter or facts which could be objected to in establishing the fact of fraud, were competent for that purpose, and were sufficient to sustain the order of arrest. These grounds of appeal raise substantially two questions: 1st. Whether the affidavit of Commander, upon which alone the order of arrest was made, contained facts sufficient to justify the granting of the order. 2d. Whether the additional affidavits submitted by the plaintiffs were in reply to those upon which the notice of the motion to vacate was based.
To determine these questions, it will be necessary to inquire what facts are stated in the affidavits pertinent to the issues which we are called upon to determine. The affidavits are too long for insertion in this opinion, but copies of them should be incorporated in the report of the case; and we will not undertake here to make anything more than a very summary statement of the facts which may be supposed to relate to the question of fraud. First, as to the affidavit of Commander. That affidavit, stripped of all unnecessary details, simply amounts to this: that defendant obtained from plaintiffs lumber to the amount stated, under a promise to pay for the same out of money which he was to receive for building a house for Mrs. Talbot, in instalments as the work progressed; that defendant failed to comply with his agreement, representing that there was more money due him from Mrs. Talbot than was really due, which defendant knew to be untrue; that there being a
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