Johnson v. Finger

Oct 28, 1915

9220

Reporters:: , ,
Before:: Hydrick

The opinion of the Court was delivered by

Mr. Justice; Hydrick.

We approve the decision of the Circuit Court for the reasons therein stated.

1 2 We may add that defendant’s attorney was in error in supposing that the pendency of a motion to make the complaint more definite and certain would extend the time for answering, until the motion was decided. The time for answering is fixed by statute, and it can be extended only by consent, or by order, obtained in the manner prescribed by the statutes and rules of Court. When such consent or order can not be obtained, the proper practice is to answer, reserving the right to press the motion. Whaley v. Lawton, 53 S. C. 580, 31 S. E. 660.

3 The notice should not have fixed the time for hearing the motion on the call of the case. That is the time for trial on the merits; and all motions of a dilatory nature should be noticed and brought to hearing at the earliest time practicable, so that the trial on the merits may not be delayed. That is the reason why rule 20 of the Circuit Court requires such motions to be noticed before demurring, or answering a pleading, and within twenty days after service thereof.

4 While it is important that the .statutes and rules of Court which are designed to promote the speedy and orderly determination of causes should be complied with, it must not be forgotten that their purpose is to aid the administration of justice; and they should not be applied so as to defeat it. Of course,’ a party who is wilfully or inexcusably in default, or one who gets himself into that predicament by resorting to technical and dilatory practice or motions without merit and for the purpose of hindering and delaying the opposite party in bringing the cause to a *358 hearing on the merits, deserves no consideration from the Court.

5 But, in this case, it was made to appear that defendant’s attorney was endeavoring, in good faith, according to’ what he conceived to be proper practice, to subserve the interest of his client, who, according to the prima facie showing made; has a meritorious defense. The trial of the case on its merits would not have been materially delayed, if he had been allowed to file his answer, and, under the circumstances, he should have been allowed to file it.

Judgment affirmed.