Smith v. Smith, 50 S.C. 54

Smith v. Smith

50 S.C. 54 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Justice Gary.

In order to understand clearly the facts of this case, it will be necessary to set out in the report of the case the complaint, the notice of motion, the order of his Honor, Judge Watts, and the exceptions to the said order.

The exceptions raise practically but three questions, to wit: 1st. Was there error on the part of the Circuit Judge in refusing to strike out various allegations in the complaint because they were irrelevant, redundant, evidentiary, and mere surplusage? 2d. Was the Circuit Judge in error in refusing to require the plaintiff to set forth clearly whether the action was for alimony on the ground of desertion, or on the ground of both desertion and cruelty, and thus make the complaint definite and certain? 3d. Was the Circuit Judge in error in refusing to require the plaintiff to state separately the alleged cause of action for desertion, and the alleged cause of action for cruelty?

*651 *64After the filing of the order aforesaid the defendant *65served an answer to the said complaint. Rule 20 of the Circuit Court is as follows: “Motions to strike out of any pleading matter 'alleged to be irrelevant or redundant, and motions to correct a pleading on the ground of its being ‘so indefinite or uncertain that the precise nature of the charge or defense is not apparent,’ must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.” The defendant would not have had the right to make the motion hereinbefore mentioned after answering the complaint, and it would seem that he waived his right to appeal from said order, by serving his answer to the complaint. Woodward v. Williamson, 39 S. C., 333; Bowden v. Winsmith, 11 S. C., 409.

2 But waiving such objection, we will consider the question upon its merits. Section 181 of the Code provides: “If irrelevant or redundant matter be inserted in a pleading it may be stricken out on motion of any person aggrieved thereby * * The Circuit Judge found as a fact that the defendant was - not aggrieved by the allegations of the complaint which the appellant moved to strike out. The burden of proof was on the moving party to show that he was aggrieved, but no testimony other than the pleadings was introduced to show that he was aggrieved. This Court concurs in the finding by the Circuit Judge, that it did not appear that the defendant was aggrieved by the aforesaid allegations of the complaint.

3 But there is another reason why the exceptions raising this question cannot be sustained. This action is equitable in its nature. Prather v. Prather, 4 DeS., 33; Rhame v. Rhame, 1 McC. Ch., 197; Pom. Eq. Jur., vol. 3, sec. 1120. Pom. Code Rem., sec. 527, says: “The differences in form between legal 'causes of action and remedies on the one side and equitable causes of action and reliefs on the other, have been described and need not be repeated. By virtue of these inherent differences, the material facts which must be alleged in an equitable suit are *66often in their nature and effects quite unlike the ‘issuable’ facts which constitute a legal cause of action. ' In the legal action the issuable facts are few, in the equitable suit the material facts upon which the relief depends, or which influence and modify it, are generally numerous, and often exceedingly so; in the former, they are simple, clearly defined, and certain; in the latter, they maybe and frequently are complicated, involved, contingent, and uncertain. * * * The legal cause of action so completely rests for its existence upon the issuable facts, that if any one of them when denied fails to be established by proof, the plaintiff’s entire recovery is defeated thereby, a result which is recognized by all the judicial decisions as involved in the very definition of a legal issuable fact. An equitable cause of action may undoubtedly rest in like manner upon a given number of determinate facts. In general, however, as has already been fully explained, facts may exist material to the recovery in a certain aspect, or in a certain contingency, or to a certain extent, and which, therefore, enter into the cause of action, but which are not indispensable to some kind or measure of relief being granted to the plaintiff. These facts if established will determine the character, extent, and completeness of the remedy conferred by the Court; but if they are not established, the remedy is not thereby wholly defeated — it is only in some particulars modified, limited or abridged. Since these classes of facts assist in determining the nature, amount and details of the relief to be awarded, they, in part at least, constitute the cause of action, within the true meaning of the term, and must be alleged. * * * A distinction inheres in the nature of the causes of action, and from this distinction the facts material to the recovery in an equitable suit may be numerous, complicated, affecting the right of recovery, partially instead of wholly modifying rather than defeating the remedy, if not established; but still they are the material facts constituting the cause of action, and not mere details of evidentiary or probative matter.” The allegations which the defendant moved to *67strike out constituted a part of the history of the case, and were important in determining the relief to which the plaintiff was entitled. Upon the trial of the case the plaintiff will be restricted in his testimony to proof of the facts alleged in the complaint, and instead of the allegations, to which the defendant objects, aggrieving him, they may work to 1ns advantage, as they inform him beforehand upon what issues the case will be tried. Pom. Code Rein., sec. 551, says: “An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action.” It cannot be said that the allegations of the complaint which the defendant moved to strike out have no connection with nor effect upon the plaintiff’s cause of action, and the exceptions raising this question are overruled.

4 We will next consider the question whether the Circuit Judge was in error in refusing to require the plaintiff to set forth clearly whether the action was alimony on the ground of desertion, or on the ground of both desertion and cruelty. The complaint contains allegations of desertion, also of cruelty. Pom. Code Rem., 519, says: “Every action is based upon some primary right held by the plaintiff, and upon a duty resting upon the defendant corresponding to such right. By means of a wrongful act or omission of the defendant, this primary right and this duty are invaded and broken; and there immediately arises from the breach a new remedial right of the plaintiff and a new remedial duty of the defendant. Finally, such remedial right and duty are consummated and satisfied by the remedy which is obtained through means of the action and which is its object. * * * The ‘cause of action,’ therefore, must always consist of two factors: (1) the plaintiff’s primaty right and the defendant’s corresponding primary duty, whatever be the subject to which they relate, person, character, property or contract; and (2) the delict or wrongful act or omission of the defendant, b3r which the primary right and duty have been violated. Every action, when *68analyzed, will be found to contain these two separate and distinct elements, and in combination they constitute the ‘cause of action.’ ” See, also, Hayes v. Clinkscales, 9 S. C., 453; Rodgers v. Mutual Endowment Association, 17 S. C., 406. The plaintiff’s primary right was to receive such treatment as the law enjoins upon a husband towards his wife. The primary duty of the defendant was to extend to her the treatment which the law requires a husband to extend to — show towards — his wife. The delict on the part of the defendant consisted in his failing to perform such duty, and the remedy which the law provided for his failure in this respect was to allow the wife alimony. The desertion and cruelty on the part of the defendant were elements of the delict, but the acts of desertion and cruelty alleged in the complaint constitute but a single delict. Sheppard v. Green, 48 S. C., 165; Threatt v. Brewer Mining Co., 49 S. C., 95. The exceptions raising the second question are also overruled.

Having reached the conclusion that the complaint states only one cause of action, it necessarily follows that the Circuit Judge was not in error in refusing to require the plaintiff to state two causes of action separately.

It is the judgement of this Court, that the order of the Circuit Court be affirmed.