12884 | S.C. | Apr 4, 1930
April 4, 1930. The opinion of the Court was delivered by This action commenced in the County Court of Richland County, August 15, 1929, is an action by Will Williams, as plaintiff, against Continental Casualty Company, the defendant, for recovery of damages in the sum of $500 under the first cause of action alleged, and for the sum of $1,000 under the second cause of action as a penalty provided for under Section 4086, Volume 3, 1922 Code of South Carolina. The complaint will be reported with the case. The defendant demurred to the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. The demurrer was heard by his Honor, M.S. Whaley, County Judge for Richland County, who after due consideration overruled the same. After the demurrer was overruled, the defendant made a motion to make the complaint more definite and certain. This motion his Honor, Judge Whaley, also overruled. From the order overruling the demurrer and from the order refusing the motion to make the complaint more definite and certain, the defendant has appealed to this Court, upon exceptions imputing error to his Honor, the County Judge, in issuing said orders.
By reference to the demurrer, which will be incorporated in the report of the case, it will be seen that, in the main, the matters set forth in the demurrer *551 upon which the same was based do not appear on the face of the complaint, and cannot, therefore, be considered in passing upon the demurrer; such matters could only be of avail to the defendant when properly set up in answer by way of defense. In passing upon a demurrer to the complaint, the same must be considered in the light of the allegations of the complaint, and matters not appearing on the face of the complaint have no place in the consideration. In our opinion, the demurrer is not well founded, and his Honor, Judge Whaley, properly overruled the same.
As to the exceptions imputing error to his Honor in refusing the motion to make the complaint more definite and certain, we deem it sufficient to state that the motion was made too late. Under the rules of the Court, motions to make the complaint more definite and certain must be noticed before serving demurrer or answer, and, unless the rights thereunder are reserved, must be heard and disposed of before serving demurrer or answer, and, the motion to make more definite and certain in this case having not been made or noticed until after the demurrer was served and overruled by the Court, the same could not properly be considered by the Court.
The exceptions are overruled, and the orders and judgment appealed from affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.
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