37 S.C. 231 | S.C. | 1892
The opinion of the court was delivered by
This is an appeal from the order of Judge Witherspoon, who heard the cause at Abbeville in the Court of Common Pleas, at the June term, 1891, of said court, dismissing the complaint because it failed to state facts sufficient to constitute a cause of action. The respondents having made a motion to set aside the proof of service upon them by publication, and this motion having been refused, the respondents give notice that they will in this court use this error of the Circuit Judge in fortifying his dismissal; on the ground, in other words, that he ought to have dismissed the complaint on this ground, even if he was in error as to the oral demurrer.
It is the opinion of every man who extends credit to another person, that in case of the failure to discharge such debt by the debtor himself, his property, under the law, can be made by sale to discharge the same, if sufficient in value; that in the
It is the judgment of this court, that the judgment of the Circuit Court, wherein Judge Witherspoon dismissed the complaint, be reversed, and that the action be remitted to the Circuit Court for trial.
In this case, and the case next supra between the same parties, a petition was filed, asking for a rehearing in behalf of defendants, on the grounds that the court had not passed upon some of the grounds urged by these petitions, and had considered grounds urged by the appellants from the decree of Judge Witherspoon, when no such grounds had been taken on Circuit.
December 15, 1892. The following order was passed
After a careful consideration of this petition, in connection with the opinion heretofore filed in this cause, we are unable to perceive that any material fact or principle of law has either been overlooked or misunderstood. For, while it may be true that every question presented by the argument may not have been specifically referred to in the opinion, yet it is clear that the principles laid down in the opinion, as controlling the decision, necessarily imply that all these questions were considered and determined. It is, therefore, ordered, that the petition be dismissed, and that the stay of the remittitur heretofore granted, be revoked.