Hamer v. David, 117 S.E. 807

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117 S.E. 807 | S.C. | 1923

May 8, 1923. The opinion of the Court was delivered by This is the second appeal in the case (112 S.C. 211;99 S.E., 816), and is from an order of his Honor, Judge McIver, refusing an amendment asked for by the appellant, said order being passed August 16, 1921. The exceptions, seven in number, allege error, and challenge the correctness of his Honor's ruling.

The referee, Hon. E.C. Dennis, first allowed the amendment and then refused an order asked for by the appellant after the amended complaint was filed. A motion was made to strike out, then the complaint was withdrawn, and the order of amendment asked for was applied for and refused by the referee. The referee in his order refusing the order asked for says:

"I do not think the amendment sought is such as is permissible under the law. If the law with reference to amendments left it to my discretion I would allow so much of the amendment sought as would allege fraud on the part of Hamer in obtaining the contract of 1910, whereby he obtained the interest of Rising in the rents, in so far as the question would affect the legality of the 15-bale contract." *397

The trustees are willing for the appellant to have the amendment proposed and are willing to account in full, and court the fullest investigation as to all of their actings and doings. Hamer alone contests the amendment.

Both the referee and Circuit Judge based their orders on the law of the case, and did not refuse the order in the exercise of their discretion. The referee was in error in holding, under the law, he could not grant the order asked for; he had full and plenary power to do so in Code of Laws (Civil) 1912, § 332, under the decided cases of this Court.Beall Co. v. Weston, 83 S.C. 495; 65 S.E., 823. McKnightv. Cooper, 27 S.C. 94; 2 S.E., 842. Pickett v.Railway, 74 S.C. 244; 54 S.E., 375. Taylor v. RailroadCo., 81 S.C. 579; 62 S.E., 1113. Spears v. Railway Co.,92 S.C. 300; 75 S.E., 498. An allowance of the amendment would have been promotive of justice. This Court has said in Southeastern Life Insurance Co. v. Palmer,113 S.E., 310: "Courts are practical, not technical." The time is long since passed for the trial of cases by piecemeal by devious routes by a multiplicity of suits.

The amendment should have been allowed, and the order appealed from is reversed, as it was based on a misconception of the law, and not upon an exercise of discretion.

Reversed.