56 S.C. 241 | S.C. | 1899
The opinion of the Court was delivered by
Inasmuch as this is an appeal from a judgment overruling demurrers to» the complaint, it is necessary to- set out the complaint, which, omitting the caption, reads as follows: “Lewis Jerkowski, Harry E. Moss and Emanuel Blumensteil, executors Samuel Jer-kowski, plaintiffs, v. Samuel Marco» and Isaac Lewenthal, copartners, as S. Marco» & Lewenthal, defendants. The complaint of the above named plaintiffs respectfully shows to this Court: 1. That Samuel Marco and Isaac Lewenthal, copartners as S. Marco & Lewenthal, made their promissory note, in writing, bearing date 6th of January, 1892, whereby they promised to pay to the order of S. Jerkowski o»n 1st 1893, $1,000, with interest at the rate of eight per cent, per annum, at the Bank of Darlington, S. C. 2. That on the
To this complaint the- defendants filed a demurrer upon the ground “that it appears upon the face of the complaint that the plaintiffs have not legal capacity to sue.”
When the case came on for trial, at November term, 1898, before his Honor, Judge Watts, and a jury, the defendants interposed an oral demurrer upon the ground that the complaint does not state facts sufficient to- constitute a cause of action, and in accordance with the rule of Court upon the subject, stated in writing the grounds upon which the complaint was claimed to- be insufficient, as follows: “In the title of the complaint the plaintiffs state that they are executors of Samuel Jerkowski, but in the body of the complaint fail to allege that they were appointed his executors under 'his will and have qualified as such, or that the said will was admitted to probate in the State of New York, and also- in the county of Darlington and State of South Carolina, and that letters testamentary have been issued.”
Both of these demurrers were overruled by the Circuit Judge, and the defendants declining to answer, judgment was entered against them. From this judgment defendants appeal upon the several grounds set out in the record, a copy of which should be incorporated by the Reporter in his report of the case.
While, therefore, we may say, as was said in Dial v. Tappan, supra: “It is apparent -that the complaint was not framed with that precision and minute accuracy which, perhaps, the old form o'f pleadings required, and which it would be best to observe even under the new, so as to> prevent delay, prolonged litigation and technical controversies, yet, under the liberal spirit of ’the Code, which looks more to1 substance than to mere form,” we think there was no' error in overruling the demurrer, and in the absence of any answer rendering judgment for the plaintiffs.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.