56 S.C. 456 | S.C. | 1900
The opinion of the Court was delivered by
The following statement appears in the “Case” as prepared for argument here: “This is an action by the plaintiff against the defendants in the magistrate’s court for the recovery of $30.88 for medicines sold and delivered to1 defendants. The defendants demurred to the proceeding for the reason that it does not appear by the summons and complaint 'that the plaintiff is a corporation, partnership or individual, and such omission destroys the capacity of said plaintiff herein to maintain its action, and' destroys the jurisdiction of the court, it no where appearing that the plaintiff has a corporate existence, with power to sue or be sued. The magistrate overruled the demurrer, whereupon the defendants filed an answer, and the testimony in the case (was?) taken by the magistrate. Before the magistrate decided the case upon its merits, he reconsidered the defendants’ demurrer to the summons and complaint, and passed an order sustaining the demurrer, but allowed the plaintiff ten days in which to1 amend his complaint as advised- From this order both plaintiff and defendants appealed ft> the Circuit Court. The Circuit Judge sustained defendants’ grounds of appeal, sustaining the magistrate’s ruling, sustaining the demurrer, but holding that the magistrate was without power to grant the plaintiff leave to' amend. And in hearing said appeal also> sustained the defendants’ grounds of appeal from the magistrate’s ruling upon the testimony taken in the case, while the case had not been decided by the magistrate upon its merits. From such ruling of the Circuit Judge this case now comes up on appeal to this Court by way of exception on the part of the plaintiff.” This statement is followed by a copy of the summons
The judgmenlt of this Court is, that the judgment of the Circuit Court be reversed, anid that the case be remanded- to the magistrate’s. Court for trial, with leave to' the plaintiff to amend the summons and complaint by inserting suclh allegations as may be necessary to remove the grounds for the demurrer which lhas been -sustained,'provided such amendment be -made and served upon the defendants at least twenty days before the day that may be appointed by the magistrate for such trial.