Dawkins v. Mathis, 47 S.C. 64

Dawkins v. Mathis

47 S.C. 64 | S.C. | 1896

The opinion of the Court was delivered by

Mr. Justice Gary.

This action was brought for the’ purpose of recovering from the defendant the balance due on subscription to the capital stock of the D. B. Stewart Company. The defendant answered the complaint, and set up the defense of failure of consideration.

The other facts necessary for a proper understanding of this case will be found stated in the order granted by his Honor, Judge Buchanan, which, together with appellant’s exceptions, will be set out in the report of the case. Section 165 of the Code is as follows: “The defendant may demur to the complaint, when it shall appear upon the face thereof, either: 1. That the Court has no jurisdiction of the person of the defendant or the subject of the action; or 2. That the plaintiff has not legal capacity to sue; or 3. That there is another action pending between the same parties for the same cause; or 4. That there is a defect of parties, plaintiff or defendant; or 5. That several causes of action have been improperly united; or 6. That the complaint does not state facts sufficient to constitute a cause of action.”

*67The objection which the defendant interposes to the sufficiency of the complaint arises properly under subdivision 2, and not under subdivision 6 of said section of the Code. Section 169 of the Code is as follows: “If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to constitute a cause of action.” The case of Mickle v. Construction Con 41 S. C., 394, and the cases therein mentioned, show that objection to the complaint by what is ealled an “oral demurrer at the trial,” comes too late when it arises under subdivision 2, hereinbefore mentioned. This case is cited with approval in Willis v. Tozer, 21 S. E. R., 621. Appellant’s exceptions are, therefore, sustained.

It is the judgment of this Court, that the judgment of the Circuit Court be reversed.