54 S.C. 485 | S.C. | 1899
The opinion of the Court was delivered by
The complaint alleges three causes of action against the defendant, claiming $1,000 damages. Service of summons and complaint was made on 4th February, 1898. On 12th February, 1898, carefully prepared notices were served to require plaintiff to elect upon which cause of action he would rely; to make the complaint more definite and certain; also, to set out a bill of lading; and, also, for more time to answer. These motions were heard by Judge Benet at chambers on 21st February, 1898, and were decided on the same day (at night). The answer was served on the 24th February, 1898, under protest. On the 16th June, 1898, a notice of a motion before his Honor, Judge Klugh, at chambers for leave to file an answer, accompanied by such proposed amended answer, was served. On the 6th day of July, an order was made by his Honor, Judge Klugh, allowing the answer to be amended as directed. From this order the plaintiff now appeals. The following is the order made by Judge Klugh: “This is a motion to be allowed to amend the answer of the defendant, so as to allow it to set up the defense of negligence of the plaintiff in not watering and feeding the horses which it is alleged were injured by defendant’s neglect in this particular: and also the defense that the plaintiff by his acts and conduct has waived any right he may have had to bring this action, and is now estopped from complaining of the defendant. The motion is made upon the entire record herein, and is resisted on the grounds: (1) That there is no affidavit showing merit in the additional defenses, or want of knowledge on the part of the defendant of their existence at the time the original answer was served, or at least some reasonable grounds why they were not set up in the original answer; and (2) That the defense of contributory negligence
The grounds of appeal are as follows: “1. That his Honor, Judge Klugh, erred in holding that it was not necessary in the motion before him to show by affidavit: (1) That there was merit in the proposed amendments. (2) That the existence of the fact or facts which gave rise to the proposed amendments was unknown to the defendant at the time it served its original answer. (3) That, if these facts,were within the knowledge of the defendant at the time of the service of its original answer, some
It is the judgment of this Court, that the order of the Circuit Court appealed from be affirmed, and the action be remanded to the Circuit Court.