76 S.E. 1099 | S.C. | 1913
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *489 February 8, 1913. The opinion of the Court was delivered by On October 27, 1910, plaintiff commenced an action against defendant in the Court of Common Pleas for Greenwood county. The allegations of the complaint, germane to the cause of action, are, in substance, as follows: That plaintiff is the wife of defendant, from whom she has permanently separated; that she is owner in fee, in her own right, of certain lands in Richland *490 county, which are particularly described; that defendant, against her objections and protests, continually trespasses on said property and collects the rents from her tenants, and will not account to her therefor; that he is unable to respond in damages and she has no adequate remedy at law; that one of the tracts described was to be conveyed to defendant, and that she is ready and willing to convey it to him, upon his accounting to her for the rents belonging to her which he has collected, as aforesaid, and upon his paying a certain note for about $270.00 which she holds against him. She prays that he be enjoined from trespassing upon her said property, and from collecting the rents thereof, or interfering with her tenants; that he be required to account to her for the rents collected by him; and for general relief.
In due time, defendant demurred to the complaint on two grounds, to wit, that it appeared upon the face thereof: 1. That the Court had no jurisdiction of the person of defendant. 2. That it had no jurisdiction of the subject of the action. The demurrer was not accompanied by the certificate of merit required by rule 18 of the Circuit Court, to wit: "A demurrer must, in every case, be accompanied by a certificate of the counsel filing it that it is meritorious, and not intended merely for delay."
Thereafter, on December 1, 1910, plaintiff commenced this action in the Court of Common Pleas for Richland county. The following notice, addressed to defendant, was attached to the summons and complaint and served upon the defendant: "You will please take notice that the action heretofore commenced by the above named plaintiff against you as defendant, entitled `County of Greenwood,' and to which action you filed a demurrer to the jurisdiction of the Court, has been discontinued, dismissed and abandoned by plaintiff through her attorneys, Grier Parks, without cost to the said defendant, John T. Duncan. The insertion of `Greenwood county' in the said cause was through inadvertence and oversight, the intention having been to have *491 `Richland county' appear where `Greenwood county' was written. You are herewith served with summons and complaint in the suit of the said Mrs. Louise T. Duncan, plaintiff, against yourself as defendant, in Richland county."
The allegations of the complaint in this action are the same as those of the complaint in the action commenced in Greenwood county. To the complaint in this action, defendant interposed the following demurrer: "The defendant demurs to the complaint herein, with notice thereto attached, for it appears upon the face thereof that there is another action pending between the same parties, for the same cause." This demurrer was not accompanied by the certificate of merit required by the rule of the Court above quoted. To this demurrer was attached an affidavit of defendant, alleging the commencement of the action in Greenwood county, and that he had duly demurred to the complaint therein; that said action was brought in Greenwood county for the convenience of plaintiff; that it was to his inconvenience and expense; that he had not consented to its discontinuance, nor had the Court ordered its discontinuance, nor had any reference been held to determine his costs and expenses; that he has a complete defense to the allegations of the complaint; that plaintiff is suffering no wrong, but seeks to obtain that to which she has no right, having deserted him, without notice or cause." Thereafter, plaintiff gave defendant notice that she would move the presiding Judge, at his chambers, at Camden, on March 16, 1911, at 10 o'clock a. m., for an order striking out his demurrer as frivolous. Defendant failed to appear at the hearing of the motion, which was heard at the time and place specified in the notice, and it was granted. Thereafter, defendant moved the Court for a rehearing of the motion on the ground, as stated in the notice, that he had "by inadvertence and excusable neglect failed to reach Camden and be present at the time said motion was heard, the defendant having mistaken the 16th instant for the 15th, *492 and, on attempting to communicate with Judge Copes, he was informed that the Judge had left Camden two days prior thereto, which was the 15th inst. Defendant asks, as a matter of justice and equity, that he be granted the opportunity to show that his demurrer was, according to law, right and proper, and also in good faith; that it was not frivolous, and that the motion of plaintiff should not have been entertained, and that under any circumstances defendant should have been granted the right to put in an answer. The defendant will ask for whatever relief may be right and proper." The grounds upon which the motion was made were stated only in defendant's notice, and they were not supported by affidavit. His motion was refused.
Thereafter, on March 29, 1911, the case was called for trial in open Court, and, after hearing testimony, which was not reduced to writing, the Court entered a decree in favor of plaintiff, in which it was found that the allegations of the complaint are true and that defendant is indebted to plaintiff in the sum of $1,409.17 — $358.17 thereof being the amount due on the note mentioned in the complaint, and $1,051.00 thereof being the balance due plaintiff for rents of her property which defendant had collected and failed to pay over to her, and judgment was given against defendant therefor, and plaintiff was awarded relief, according to the prayer of her complaint.
From this decree, and the intermediate orders mentioned, the defendant appealed. His exceptions present the following assignments of error: 1. In striking out his demurrer as frivolous. 2. In refusing his motion for a rehearing of the motion to strike out the demurrer. 3. In striking out the demurrer on motion heard at chambers. 4. In refusing to allow him to answer. 5. In hearing the case on calendar 2 without notice to defendant, when it should have been heard on calendar 1 and tried by a jury. 6. In holding that defendant had failed to answer, when he should have held that the affidavit served with the demurrer controverted *493 the allegations of the complaint and was an answer. 7. In adjudging that defendant pay his indebtedness to plaintiff as a condition of her being required to convey to him the lot which she alleged in her complaint was to be conveyed to him. 8. In rendering any decree in this action while the suit in Greenwood county was still pending. The remaining exceptions question the findings of the Court as being contrary to the weight of the evidence.
Section 165 of the Code of Procedure provides: "The defendant may demur to the complaint, when it shall appearupon the face thereof (italics added), either, 1. That the Court has no jurisdiction of the person of the defendant, or the subject of the action * * *; or, 3. That there is another action pending between the same parties for the same cause." Section 168 provides: "When any of the matters enumerated in section 165 do not appear upon the face of the complaint, the objection may be taken by answer." Under the provisions of the code above quoted and the decisions of this Court, a complaint is not demurrable on either of the grounds above stated, unless it appears upon the face thereof, that the Court has no jurisdiction of the person of the defendant, or of the subject of the action, or that another action is pending between the same parties for the same cause. Kiddell v.Bristow,
Moreover, if defendant was a resident of some other county than that in which the venue was laid, and had brought the fact to the attention of the Court in the proper way, either by answer or by affidavit on a motion to have the case transferred to the county of his residence for trial, the Court would have had jurisdiction to transfer it, but would not have had jurisdiction to pass any order affording defendant affirmative relief. All
v. Williams,
As it is clear beyond controversy that it does not appearupon the face of the last complaint that the Greenwood action was still pending, and as the demurrer to that complaint was not accompanied by the certificate required by rule 18 of the Circuit Court, it follows that there was no error in granting plaintiff's motion to strike out that demurrer as frivolous. The question is too plain for argument. Furthermore, if, as defendant contended, the Court in Greenwood county had no jurisdiction either of his person or of the subject of the action, how can he be allowed to contend in this case that the pendency of that action is a bar to this? The two positions are inconsistent. If the Court in Greenwood had no jurisdiction, no action was pending. 1 Cyc. 35. Nor was there error in hearing the motion at chambers. Badham v. Brabham,
The motion for a rehearing of the motion to strike out was addressed to the discretion of the Court below. This Court has held in cases too numerous to mention that it will not interfere with the exercise of discretion in such matters, except in case of manifest error. Now, in this case, the grounds upon which the motion was based were not supported by affidavit. There was no error in refusing to set aside the previous order upon the mere statement of the defendant, contained in the notice of his motion, and unsupported by his affidavit. When a party asks for relief in such cases upon the ground of mistake, surprise or excusable neglect, the facts should be set out in detail and under oath, so that the Court may decide, upon the facts, whether the claim to relief is well founded. *496
What has been said with regard to the refusal of defendant's motion for a rehearing of the motion to strike out his demurrer applies with equal force to the refusal of his motion to be allowed to file an answer. He failed to make it appear by affidavit, or even by statement thereof, that he had a meritorious defense. The 19th rule of the Circuit Court forbids even an extension of time to answer or demur without a certificate that defendant has a good and substantial defense upon the merits. For greater reason, a default should not be opened, and the party allowed to plead, unless it is made to appear, not only that the default was the result of mistake, surprise or excusable neglect, but also that the party has a good and substantial defense, and the facts constituting such defense should be stated, under oath, so that the Court can decide whether, if true, they really constitute a meritorious defense.
In Turner v. Bolton,
In this connection, we may dispose of defendant's contention that the Court erred in holding that he was in default when it should have held that the affidavit served with his demurrer controverted the allegations of the complaint and was equivalent to an answer. It would certainly establish a novel practice, and one at variance with the Code of Procedure, the rules of Court, and all precedents, to hold that an affidavit filed in support of a demurrer (a practice which is itself without precedent) should in effect be an answer. That the defendant himself did not so intend it is conclusively shown by his present contention that he should have been allowed to answer. Besides, by reference to the affidavit of defendant, it will be seen that it does not deny a single allegation of fact contained in the complaint which is germane to plaintiff's cause of action.
The defendant, being in default, cannot complaint that he had no notice of the trial, or rather of the proving of *498
plaintiff's cause of action, and of the taking of the judgment against him. He was not entitled to notice thereof. Johnson v. Masters,
There was no error in requiring defendant to pay plaintiff what it was found he owes her, as a condition of her being required to convey to him the land, mentioned in the complaint, the legal title of which she alleges she holds in trust for him. The maxim, who seeks equity must do equity, applies in such cases.
The exceptions which question the findings of the Circuit Court as opposed to the weight of evidence cannot be considered for two reasons: 1, Because the evidence was not reduced to writing, and is not, therefore, before the Court. There is no statute or rule of Court which requires that the evidence in a default case like this shall be reduced to writing and preserved with the record; and this Court will indulge every presumption in favor of the judgment of the Circuit Court. 3 Cyc. 308et seq. 2. Because a party in default cannot appeal directly to this Court from the judgment against him. His remedy is by a motion in the cause, to vacate the judgment, under section 195 of the Code. Gillian
v. Gillian,
Affirmed.
MR. JUSTICE WOODS concurs.
THE CHIEF JUSTICE, disqualified.
Dissenting Opinion
I cannot concur in the opinion of Mr. Justice Hydrick herein. I concur in so much *500
of his opinion as sustains Judge Copes in overruling the demurrer filed by the defendant to the complaint of plaintiff on the ground there was no merit in it. The fact that the defendant did not file a certificate that it was meritorious is, in my opinion, immaterial, as he accompanied the demurrer with an affidavit, which was a substantial compliance with the rule, as defendant is not a practicing attorney, but only exercised his constitutional right to appear in person and defend. I think some latitude and discretion should be exercised in the interest of substantial justice, and while it is true that Mr. Justice Haskell says, in Rice v. Mahaffey,
Rule LX of Circuit Court is, "Where a party has suffered a nonsuit or discontinuance or has otherwise let fall his action, all proceedings in any new action for the same cause shall be suspended until all costs of such former action shall have been paid." It was incumbent on the part of the *501 plaintiff to comply with this rule before she could prosecute another action to judgment. I think upon the record in the case that defendant should have been allowed to answer on the merits and if this was denied that his Honor should have suspended the case until the costs of former cases were paid. I do not think that it is the duty of a Circuit Judge to, alone as it were, referee an intellectual combat between the attorneys of opposite sides, but upon the whole case before him see that the litigants' rights are protected. I do not think the practice of granting decrees where testimony is required, unless that testimony is reduced to writing and perpetuated in some permanent form, is to be commended, and where damages claimed are unliquidated, even though default is made by failure to answer. Even under these circumstances, in my opinion, the party defaulting, if he saw fit to exercise the right, could appear and cross-examine the witnesses put up to establish facts required to be proven to obtain judgment.
The decree in this case is too sweeping to have been granted without the testimony to support it being reduced to writing by the Court or under the direction of the Court.
I think the decree should be reversed and case remanded with leave to defendant to answer under such terms as the Circuit Court sees fit to impose.
MR. JUSTICE FRASER concurs.
Addendum
February 8, 1913. Petition for rehearing refused by formal order filed on February 8, 1913. *502