30 S.C. 564 | S.C. | 1889
The opinion of the court was delivered by
The plaintiff brings this action as assignee of his father, Daniel Hall, sr., against the defendant, Woodward, to recover one-half of the amount paid by. him in satisfaction of a judgment which had been recovered against Daniel Hall, sr., on a note, upon which it is alleged he and Woodward were joint sureties. In his original answer the defendant raised no issue, either as to the execution of said note by him, or as to the fact that he and Daniel Hall, sr., were co-sureties on said note, but rested his defence upon other grounds, one of which was that the note was presumed paid as to him by lapse of time before the judgment was paid by the plaintiff herein. At the first trial the Circuit Judge, without considering any of the other defences, sustained the plea of payment presumed from lapse of time, and upon that ground alone rendered judgment dismissing the complaint. From that judgment the plaintiff appealed, and this court reversed the judgment and remanded the case for a new trial. See the case as reported, 26 S. C., 557.
In pursuance of this arrangement the case was heard on the merits by Judge Witherspoon at the next term of the court upon the pleadings as amended. The amended answer purports to put in issue both the fact of the execution of the note by Woodward and the fact of his co-suretyship with Daniel Hall, sr., by denying any knowledge or information sufficient to form a belief as to either of these facts. Judge Witherspoon finding, as matter of fact, that the plaintiff had failed to show by a preponderance of evidence either the execution of the note or that he and Daniel Hall, sr., were co-sureties thereon, rendered judgment that the complaint be dismissed, with certain provisions as to the costs, which need not be stated, as there is no controversy here in reference to that portion of the judgment. From this judgment plaintiff also appeals upon the several grounds set out in the record.
We will first consider the appeal from Judge Wallace’s order granting leave to substitute the amended answer for the one originally filed. The first exception to this order is that the issues sought to be raised by the amended answer were res adjudieata by the former decision in this case. These issues were as to the execution of the note by Woodwai’d and the fact of his co-surety-ship with Daniel Hall, sr. As it is quite clear that no such issues were presented by the pleadings at the former trial, it is difficult to conceive how they can be regarded as res adjudieata. Neither the Circuit nor Supreme Court was called upon to determine anything whatever in regard to these facts, and
The second exception to the order is that the Circuit Judge erred in holding that the proposed amendment was in furtherance of justice. Ordinarily, motions to amend are addressed to the discretion of the Circuit Court, and whether a proposed amendment is in furtherance of justice, is a matter to be determined by that court upon a review of all the circumstances. The consideration so earnestly urged that the plaintiff, by the death of witnesses, was put at a disadvantage, was a very proper matter to be considered by the Circuit Judge, and no doubt it was allowed by his honor all due weight; but it was not conclusive or controlling.
The third exception is that the motion to amend was improperly granted, because, by the proposed amendment, the defendant is allowed to change his defence. Section 194 of the Code reads as follows: “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 a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations 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.” It is very obvious that the power of amendment conferred by this section is very broad, though not entirely unlimited; and the appellant, by this exception, contends that one of these limitations is that “the claim or defence” shall not be substantially changed by an amendment.
It seems to us, however, that this limitation applies only to cases where an amendment is applied for during or after the trial. This is shown by the language used in the latter part of the section where the limitation is found — “by conforming the pleading or proceeding to the facts proved?’ — showing clearly that it is
If any authority be needed to sustain -this construction of section 194 of the Code, it may be found in the cases cited in the argument of Mr. Obear, one of the counsel for respondent.
The fourth exception is based upon the ground, that the proposed amended answer “is frivolous, evasive, and insufficient.” That it is not frivolous or evasive, is shown by the fact that it presents two issues — one as to the execution of the note, and the other as to the fact of co-suretyship — which were essential to the maintenance of the plaintiff’s case; and in view of the fact that both of those issues have been determined adversely to the plaintiff’ by the Circuit Court after a full hearing, we certainly cannot say that the allegations upon which they rest were manifestly untrue. As to the insufficiency of the answer, there is no specific statement in the exceptions as to the ground upon which it is alleged to be insufficient; and under a strict practice, we would be justified in disregarding this branch of the exception. But as we have been able to gather from the argument in what respect the answer is supposed to be insufficient, we.will not decline to consider the question.
As we understand it, the ground upon which the answer is claimed to be insufficient, is that it simply denies any knowledge or information sufficient to form a belief as to whether defendant executed the note, and that such a denial is insufficient to present an issue as to the execution of a written instrument. This may be true, as a general proposition, where the instrument is accessible; for the Code, proceeding upon the theory that mere formal proof should be dispensed with, and the parties brought to the real issues involved, does not permit a denial of knowledge or information sufficient to form a belief as to the existence of a fact, the truth of which can be readily ascertained, as, for example, a record in a public office, or any other writing to which the party can gain access, to be regarded as sufficient to raise an issue. But to apply this rule to such a case as this, would be a perversion of its true object and real design. Here, the note has been lost for some nineteen or twenty years, and the defendant not having any opportunity to examine it, and it not having been brought to his attention for more than twenty years, we do not see how he could truthfully say more than he has done. But we
The fifth exception imputes error to Judge Wallace in not holding that the defendant was estopped by his conduct from denying either that he had signed the note, or that he and Daniel Hall, sr., were co-sureties. We are unable to find any evidence in the conduct of the defendant which would raise such an estoppel. He certainly never said or did anything calculated to induce the plaintiff to make the payment on the judgment; for, so far from admitting his own liability, he constantly denied it. The fact that he did not place his denial upon the distinct ground that he had never signed the note, or that he and Daniel Hall, sr., were co-sureties, cannot affect the question. It seems to us that the whole conduct and conversation of the defendant, instead of encouraging the plaintiff to make the payment, should have had precisely the contrary effect. He certainly never admitted his liability, and never admitted signing the note or the fact of cosuretyship, until he filed his original answer, which being long after the plaintiff made the payment, could not possibly have induced such payment. The utmost that can be said is, that the defendant never denied signing the note or the fact of his cosuretyship ; and we do not see that he was under any obligation, either legal or moral, to make such denial until called upon by proper authority.
It seems to us, therefore, that none of the exceptions to Judge Wallace’s order can be sustained.
We come, next, to the appeal from Judge Witherspoon’s decree. The second, third, seventh, and eighth exceptions to this decree have already been disposed of in considering the appeal from Judge Wallace’s order. The first, fourth, sixth, and tenth exceptions simply impute error in matters of fact. The fifth and ninth exceptions raise questions as to the competency and effect of certain documentary evidence.
First, as to the questions of fact. Under the well settled rule of this court, the appellant must show either that the findings of fact in the court below are without any testimony to support them, or are manifestly against the -weight of the testimony; and this, we think, he has failed to do. It was essential to the plaintiff’s
The only remaining inquiry is, whether the Circuit Judge erred in his rulings as to the competency and effect of the documentary evidence referred to in the.fifth and ninth exceptions. The defendant was not a party to the record in Mobley v. Hall, and nothing contained in that record was competent evidence against him; and the same may be said of the copy of the note found in Col. Rion’s law office, no matter what the purpose may
The judgment of this court is, that the judgment of the Circuit Court be affirmed.
The cases cited by Mr. Obear upon this point are to be found reported as follows: 11 How. Prac., 170; 7 J. & Sp. (N. Y.), 277; 21 S. C., 241; 7 How. Prac., 294; 3 Abb. Prac., 86; 51 Barb., 629; 53 Id., 571; 3 Abb. Prac. (N. S.), 359; 49 N. Y., 80; 4 Wait Prac., 661; 13 S. C., 21, 495; 20 Id., 522. — Reporter.