47 S.E.2d 209 | S.C. | 1948
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *196 April 1, 1948. This is an action brought in the Court of Common Pleas for Spartanburg County in April, 1947, upon an administration bond given in the matter of an estate in the Probate Court of Orangeburg County. Code of 1942, Secs. 8975, 8976. In the complaint it is alleged that the plaintiffs are the children, one posthumous, of the intestate, one V.T. Whaley, who lived in Orangeburg and died there in September, 1925. Plaintiffs' mother, decedent's widow, was the only other surviving heir at law and she was appointed administratrix and defendant was the surety upon her bond in the amount of $125,000.00 which was dated Sept. 18, 1925; that the administratrix failed to file returns, although she handled large sums of money and other personal property, until her purported final settlement of the estate on Sept. 23, 1929, when Letters Dismissory were issued to her by the Probate Court, and the plaintiffs, then infants, were not parties to the Probate Court proceeding and no guardian ad litem was appointed to represent them; that the administratrix took credit in the settlement for commissions in the approximate sum of $6,000.00, to which she was not entitled because she had failed of compliance with the law requiring annual returns of receipts and disbursements; that she further took credit in the settlement for $9,200.00 which represented $200.00 per month for each of the forty-six administration months for the care and support of plaintiffs, her children, whom she was charged by law to support and maintain and was financially able so to do; that the plaintiff, Fouche, is now twenty-five years old and plaintiff, Whaley, just twenty-one; that their mother, the administratrix, died about ten years ago, that plaintiffs were damaged in the sum of $15,200.00 with interest compounded annually from Sept. 23, 1929, by reason of the illegal credits *199 aforementioned, which the administratrix took in her final settlement; that demand upon defendant for payment has been made and refused. The prayer is for judgment for the stated amount and interest.
The defendant first appeared specially to object to the jurisdiction of the court, which, however, is not involved in the appeal; then it successively moved (1) for a change of venue, (2) to bring in additional defendants, to wit, the Probate Judge of Orangeburg County and plaintiffs' stepfather who had married their widowed mother, and plaintiffs' half-sisters and half-brother, who were children of plaintiffs' mother's second marriage, and (3) answered, saving the preceding motions.
The answer contained denials and several additional, affirmative defenses. Plaintiffs demurred to the latter, which were embraced in paragraphs 12 to 18, both inclusive, of the answer; and moved for an order of reference to the Master. Defendant then moved for an order requiring a reply to the alleged new matter set out in its answer. The latter will be hereinafter discussed in such detail as is required for disposition of the pertinent questions argued before us.
Arguments upon the motions and demurrer were heard by the resident circuit judge at chambers on June 7, 1947, and he filed his order June 19, 1947, whereby all of defendant's motions were refused, plaintiffs' demurrer to the affirmative defenses in the answer was sustained, and the case was referred to the Master in Equity for Spartanburg County by a general order of reference. The reasoning and conclusions of the order will be referred to as may be convenient in consideration of the exceptions of the defendant, which is now appellant.
Taking the questions in the order presented, the first is that of venue, or rather the place of trial. Appellant's motion was to transfer the case to Orangeburg County and was upon the grounds (1) that the cause of action arose there, (2) *200
that the convenience of witnesses and the ends of justice would be thereby promoted, and (3) that the subject matter of the action is contained in the records of the Probate Court of Orangeburg, which will be necessary to a determination of the controversy. The motion was supported by a counsel's affidavit in which were set forth, inter alia, the facts that respondents' guardian was Edisto National Bank of Orangeburg and during their infancy they resided there with, and were cared for by, their uncle who was also their step-father; that the respondent Whaley is a student at a medical College in Nashville, Tennessee, and respondent Fouche is a post-graduate student at Columbia University (see Roof v.Tiller,
On this record before the circuit judge we are constrained to hold that sound discretion required that he change the place of trial to Orangeburg County. The showing that the witnesses would be convenienced and the ends of justice served by such change was all one way. *201
There was, indeed, no effort apparent in the record to show to the contrary. This provision of the order under appeal is reversed for entry of order transferring the case to Orangeburg for trial. Code of 1942, Sec. 426(3). Patterson v.Charleston W.C. Ry. Co.,
Reversal for order changing the place of trial necessarily carries with it reversal of the order of reference to the Master of Spartanburg County. The proceeding will revert to its status before motion therefor was made, without prejudice to the right of respondents to move again for a reference, if they be so advised.
Appellant's motion to add defendants was upon the ground that they have an interest contrary to the claim alleged by plaintiffs and in order to establish the liability, if any, of the suggested additional parties and prevent a multiplicity of suits. The parties sought to be brought in as defendants were the Judge of Probate of Orangeburg County and S.K. Whaley, the brother of respondents' father who, after the latter's death, married respondents' widowed mother, and the minor children of this second marriage, viz., Thomas M. Whaley, Tena Whaley, and Parnell B. Whaley. The motion was supported by the contentions, in effect, that if liability be found against appellant in favor of respondents, recoupment of loss would be possible against the Judge of Probate for his dereliction of statutory duty in the matter of the handling of the estate; and that should liability be ultimately fixed upon the administratrix, who has since died and her property passed by will to her surviving husband and children, then such property in their hands might be subjected to payment of any judgment which may be rendered in favor of respondents.
The motion was refused upon the grounds, first, that it was a matter within the discretion of the court and, second, that the proposed addition of defendants *202
would confuse the issues between appellant and respondents and that the latter are entitled to pursue appellant's alleged liability upon its bond without suing others in this action. This was a discreet disposition of the motion as will be seen by reference to the provisions of the Code of 1942, particularly Secs. 404 and 409, the latter in part as follows: "When a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." This means "when there are other persons, not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined".Phillips v. Clifton Mfg. Co.,
There is not presented in this case an effort to bring in as a defendant the appellant-surety's principal (she is dead) as in Bessinger v. National Surety Corp.,
Even the administrator is not a necessary party to an action against his surety for damages for breach of the condition of the bond. McKenzie v. Standard Acc.Ins. Co.,
Coming to the defenses alleged in paragraphs 12 to 18, inclusive, of the answer, to which demurrer was sustained, the first is, in effect, that the Edisto National Bank was appointed guardian of the estates of the then infant respondents on Sept. 13, 1929, and entered upon its duties pursuant to order of the Probate Court; that prior to her application for discharge as administratrix, respondents' mother filed her full accounting of receipts and disbursements as administratrix in the court, which was subject to inspection by the guardian and the latter receipted on Sept. 20, 1929, for various assets, the property of its wards under the settlement of the estate; and if there was violation of law by the administratrix in any attendant respect, which is denied, the bank, as guardian, was guilty of neglect and is responsible for any loss. The demurrer to this alleged defense was properly sustained. The cause of action stated in the complaint is against the appellant and whether liability also exists on the part of the guardian of the estates of the respondents, then minors, is wholly irrelevant. The same may be aptly said with respect to the contents of the thirteenth paragraph of the answer which alleges the legal conclusion that the liability attempted to be asserted by respondents in the complaint, if any, is that of the Probate Judge rather than that of appellant. Some, at least, of the factual matters alleged in these attempted defenses may be admissible in evidence upon trial under the denials contained elsewhere in *204 the answer, but the proper legal conclusions therefrom will remain for the court. The authorities cited, supra, in the discussion of appellant's effort to bring in additional defendants, are applicable here by parity of reasoning.
The fourteenth and fifteenth paragraphs of the answer set up laches and the alleged bar of the Statute of Limitations. These contended defenses were considered and stricken from the answer on circuit and are fully argued in the briefs. They will be treated in inverse order, first the statute.
Ariail v. Ariail,
Applying these authorities to the facts appearing in the complaint in this action, the running of the statute of limitations began September 23, 1929, which was the date of the purported return of the administratrix and her consequent discharge by the probate court. Less than twenty years thereafter elapsed before the commencement of the action. It was in time without regard to the former infancy of the plaintiffs. Sec. 387 (2), Code of 1942, is the applicable statute: "Within twenty years * * * an action upon a sealed instrument other than a sealed note and personal bond for the payment of money only * * *."Strain v. Babb,
Laches is difficult of definition but one is found in the recent case of Bell v. Mackey,
In the sixteenth paragraph offset is claimed against any liability as alleged in the complaint by reason of the support and education given respondents by their uncle and stepfather, S.K. Whaley, the expense of which was met by him from funds received from the estate of his wife and to which the guardian of respondents did not contribute from their estates. The alleged situation is entirely lacking in the element of mutuality which is necessary for offset, so the demurrer thereto was rightly sustained. In the Kentucky case of Wagner's Guardian v. Palmer,
The seventeenth paragraph of the answer is to the effect that the mother of respondents, who was the administratrix of the estate of their father, was without means except such as were obtained by her from the estate and that she properly used sufficient of the assets of it in support of respondents during their minority. While demurrer was sustained to this and the other affirmatively alleged defenses, it was held by the court, to which there is no exception, as follows:
"I would like to make it clear that I feel that the defendant has a right to account in this action and it can introduce evidence to show that the acts complained of in the complaint in regard to commissions alleged to have been unlawfully taken by the administratrix and funds used by the administratrix for the support of the children were not unlawful or illegal and that the administratrix had a lawful right to credit herself with commissions in the final settlement; further as to funds used by the administratrix for the support of the two minors that it was necessary so to do and that the funds so used were not in excess of a sum reasonable for the support and maintenance of children of their age and station in life."
The foregoing holding was repetitious with respect to the seventeenth paragraph of the answer for with immediate reference to sustention of demurrer to it the court said: "If the defendant can show by an accounting in this action that funds were justifiably spent by the *208
administratrix for the support of the minor children and that these funds were not in excess of a sum necessary for their maintenance and support, these facts can be shown under other allegations of the answer, to wit: the denials contained therein other than in the affirmative defenses of the answer". Certainly under these circumstances the contention of error cannot be sustained and it is unnecessary to decide the interesting question argued in the briefs in this connection. The quoted conclusions of the court are supported by by the following from the opinion in Beatty v. Nat. SuretyCo., supra,
The question undecided, because now unnecessary, is whether it was the duty of the administratrix to support respondents, who were her children, during their minority or that expense should have been met from their inheritances or from the estate. If proper answer to it constitutes a defense to the cause of action alleged in the complaint, in whole or in part, it will be available to appellant upon trial, under the terms of the circuit order which is unappealed in this respect.
The final defense alleged in the answer, to which demurrer was sustained, is contained in the eighteenth paragraph which is to the effect that the long passage of time since the events alleged in the complaint has obscured them by the deaths of persons who would have otherwise been available as witnesses, etc. This is patently no defense to this action. See the authorities supra upon laches which covers stale demand, as alleged here. *209
In view of affirmance of the sustention of demurrer to the alleged defenses in paragraphs 12 through 18 of the answer, the question of reply, which was sought by appellant in the lower court, has become moot and need not be considered.
The case is remanded to the Court of Common Pleas for further proceedings consistent with the conclusions which have been stated.
Affirmed in part; reversed in part.
BAKER, C.J., and FISHBURNE, TAYLOR and OXNER, JJ., concur.