For current provisions, see SCRCP.

SECTION 15-13-320 has no application to demurrer to counterclaim. Smart v. Charleston Mobile Homes, Inc. (S.C. 1977) 269 S.C. 588, 239 S.E.2d 78.

Important questions of novel impression should not be decided on demurrer. Dismukes v. Carletta (S.C. 1977) 269 S.C. 110, 236 S.E.2d 421. Pleading 216(1)

UNDER FORMER Section 15-13-330

In general 1

1. In general

Under Section 15-13-330, a demurrer that failed to specify distinctly the grounds of objection to the complaint was properly overruled, notwithstanding possible specific grounds set out by oral motion at the hearing, where such motion was not reduced to writing by counsel or by the court stenographer. Cockfield v. Jeffcoat (S.C.App. 1984) 280 S.C. 606, 313 S.E.2d 365.

UNDER FORMER Section 15-13-340

In general 1

1. In general

Plaintiffs' failure to timely amend their original complaints in a medical malpractice action or appeal the sustaining of the defendant's demurrer properly resulted in dismissal, but the dismissal did not bar a subsequent action brought before the expiration of the statute of limitations, provided the dismissal was based merely on the insufficiency of the complaint. Sealy v. Dodge (S.C. 1986) 289 S.C. 543, 347 S.E.2d 504.

There was no incompatibility between order of circuit judge allowing defendants additional 10 days "to file and serve answer 'and/or' answer and counterclaim 'and/or' answer, counterclaim, and cross-complaint," and prior order of special circuit judge directing that defendants have 10 days in which to answer or otherwise plead to complaint, since both orders allowed defendants to file responsive pleadings and neither allowed defendants to make motions. United Mach. Works, Inc. v. Williams (S.C. 1977) 268 S.C. 600, 235 S.E.2d 711.

Judge correctly vacated his ex parte order granting defendants extension of time to answer, prepare motions pertaining to, or otherwise respond to plaintiff's complaint subsequent to defendant's response by demurrer, because order was granted without notice to plaintiff's attorney and because of noncompliance with Circuit Court Rule 19. United Mach. Works, Inc. v. Williams (S.C. 1977) 268 S.C. 600, 235 S.E.2d 711.

Defendants who responded by demurrer to complaint lost right to move to make complaint more definite and certain "and/or" strike allegations from complaint. United Mach. Works, Inc. v. Williams (S.C. 1977) 268 S.C. 600, 235 S.E.2d 711. Pleading 365(1); Pleading 367(6)

UNDER FORMER Section 15-13-350

In general 1

1. In general

Misnomer of corporate land holder in complaint to foreclose mechanics lien, by omitting phrase referencing corporation's situs, which was not necessarily a material part of the corporate name, did not mislead owner of subject property to his prejudice, and did not render the action a nullity on the ground that the corporation named in the complaint lacked capacity to sue. H & H Glass Co., Inc. v. Wynne (S.C. 1986) 289 S.C. 389, 346 S.E.2d 523. Parties 94(1)

Generally, the misnomer of a corporation is not fatal where no proper and timely objection is made by a plea in abatement (demurrer). H & H Glass Co., Inc. v. Wynne (S.C. 1986) 289 S.C. 389, 346 S.E.2d 523. Parties 94(2)

UNDER FORMER Section 15-13-360

In general 1

1. In general

A statute of limitation is an affirmative defense which must be raised by answer, pursuant to Section 15-13-360, and it is a statute of grace, in that it permits the avoidance of liability in applicable cases; however, although given recognition when pleaded, it has never been favored by the courts. Davie v. Atkinson (S.C.App. 1984) 281 S.C. 102, 313 S.E.2d 648.

An action by the executrixes of an estate for the purpose of foreclosing on two notes secured by mortgages was not barred by the statute of limitations, where the action was commenced within the 20 year period provided for in Section 15-3-520(1), and where defendant was precluded from raising the statute as a defense by her failure to plead it in her answer as required by Section 15-13-360. Suttles v. Wood (S.C.App. 1984) 280 S.C. 272, 312 S.E.2d 574.

UNDER FORMER Section 15-13-370

In general 1

Objections to capacity to sue, waiver of objection 4

Waiver of objection 3

Waiver of objection - Objections to capacity to sue 4

1. In general

In an action against defendant's employer and its managers for wrongful discharge, Section 15-13-370 was not applicable where the use of the word "state" instead of "proof" in moving at the conclusion of plaintiff's evidence for nonsuit on the ground that plaintiff failed to state a cause of action was semantic only and of no substantive consequence. Ludwick v. This Minute of Carolina, Inc. (S.C.App. 1984) 283 S.C. 149, 321 S.E.2d 618, writ granted 285 S.C. 85, 328 S.E.2d 480, reversed 287 S.C. 219, 337 S.E.2d 213.

3. Waiver of objection

The failure of the plaintiff in a mortgage foreclosure action to demur within 20 days after being served with a counterclaim alleging libel and slander constituted a waiver of any objection based upon the contention that the counterclaim was not appropriate in the foreclosure action and the demurrer was properly overruled where the court did have jurisdiction of the parties to the action and the counterclaim stated facts sufficient to constitute a cause of action for libel and slander; the counterclaiming defendants' motion to interplead two lending institutions as parties-plaintiff was properly granted where the institutions had taken a 90 percent interest in the note and mortgage at issue and where, if they did not consent to become plaintiffs, the trial judge could order their joinder as parties-defendant. Pioneer Sav. & Loan Ass'n of Whiteville v. Horry Coastal Enterprises, Inc. (S.C. 1980) 275 S.C. 469, 272 S.E.2d 640.

4. ---- Objections to capacity to sue, waiver of objection

Under Section 15-13-370, a husband waived his objection to a proceeding for legal separation being maintained by his wife's agent, where he neither demurred to the petition nor asserted plaintiff's lack of capacity in his answer. Brewington v. Brewington (S.C.App. 1984) 280 S.C. 502, 313 S.E.2d 53. Parties 76(6)

UNDER FORMER Section 15-13-380

In general 1

1. In general

Defendant who had been served with a summons and complaint under the long arm statutes and who thereafter had requested an unlimited extension of time to answer could not enter a special appearance after the statutory time to answer had expired since it had compromised any right to appear specially by requesting the extension of time. Security Management, Inc. v. Schoolfield Furniture Industries, Inc. (S.C. 1980) 275 S.C. 466, 272 S.E.2d 638.

It is intent of Section 15-13-380 to permit defendant who contests jurisdiction to pursue matter to finality before answer or demurrer is required and jurisdiction issue is alive and in contest until remittitur is sent to court clerk; time for answering does not commence to run until question of jurisdiction is finally determined. Southland Mobile Homes of South Carolina, Inc. v. Associates Financial Services Co., Inc. (S.C. 1980) 274 S.C. 488, 265 S.E.2d 258.

The husband's appellate brief challenging the right to grant the divorce constituted a general appearance waiving the jurisdictional objection raised by his special appearance, even though the challenge to the divorce was not raised at the trial level. Nocher v. Nocher (S.C. 1977) 268 S.C. 503, 234 S.E.2d 884.

UNDER FORMER Section 15-13-420

In general 1

Counterclaim 7

Form of denial, general or specific denial 3

General or specific denial 2

General or specific denial - Form of denial 3

1. In general

Trial judge improperly denied purchaser of tax deed opportunity to defend against entry of judgment on ground on which order rested by rendering his decision on basis not advanced by pleadings, inadequacy of consideration, an affirmative defense, which was not pled by delinquent taxpayer. Patterson v. Goldsmith (S.C.App. 1987) 292 S.C. 619, 358 S.E.2d 163.

Plea of res judicata is an affirmative defense and must be pleaded. South Carolina Dept. of Social Services v. Foggie (S.C. 1978) 271 S.C. 109, 245 S.E.2d 423. Judgment 948(1)

2. General or specific denial

General denial does not place at issue the question of whether defendant's signature on an instrument is genuine. National Equipment, Ltd. v. David Jones Sales, Trucking Division, Inc. (S.C. 1977) 268 S.C. 551, 235 S.E.2d 125.

A claim of charitable immunity must be pleaded as an affirmative defense. Crowley v. Bob Jones University (S.C. 1977) 268 S.C. 492, 234 S.E.2d 879.

Assertion of "unavoidable accident" is not an affirmative defense, and may be pleaded with the general denials. Tucker v. Reynolds (S.C. 1977) 268 S.C. 330, 233 S.E.2d 402.

3. ---- Form of denial, general or specific denial

Allegation that defendant "is an eleemosynary corporation created for charitable and benevolent purposes" contains sufficient ultimate facts to raise defense of charitable immunity. Crowley v. Bob Jones University (S.C. 1977) 268 S.C. 492, 234 S.E.2d 879.

7. Counterclaim

The failure of the plaintiff in a mortgage foreclosure action to demur within 20 days after being served with a counterclaim alleging libel and slander constituted a waiver of any objection based upon the contention that the counterclaim was not appropriate in the foreclosure action and the demurrer was properly overruled where the court did have jurisdiction of the parties to the action and the counterclaim stated facts sufficient to constitute a cause of action for libel and slander; the counterclaiming defendants' motion to interplead two lending institutions as parties-plaintiff as properly granted where the institutions had taken a 90 percent interest in the note and mortgage at issue and where, if they did not consent to become plaintiffs, the trial judge could order their joinder as parties-defendant. Pioneer Sav. & Loan Ass'n of Whiteville v. Horry Coastal Enterprises, Inc. (S.C. 1980) 275 S.C. 469, 272 S.E.2d 640.

Action upon covenant not to sue cannot be maintained as counterclaim in contract action brought by purchaser of mobile home against retailer and manufacturer, since cause of action upon covenant between purchaser and manufacturer did not exist at time of commencement of action. Smart v. Charleston Mobile Homes, Inc. (S.C. 1977) 269 S.C. 588, 239 S.E.2d 78.

UNDER FORMER Section 15-13-440

"Irrelevant" 10

10. "Irrelevant"

Under the system of civil procedure existing prior to July 1, 1985, a motion to strike an entire defense on the grounds that it was irrelevant or immaterial was the equivalent of demurrer. Insurance Co. of North America v. Hyatt (S.C.App. 1986) 290 S.C. 159, 348 S.E.2d 532. Appeal And Error 919; Pleading 354

In an action by a surety against a home builder on an indemnity contract, where the surety bond application required the home builder to indemnify the surety for all sums paid in consequence of its suretyship, and it was undisputed that the surety had incurred losses in correcting defects in work done by the home builder, the builder's defenses challenging the constitutionality of the South Carolina Residential Home Builders Commission and its regulations were property stricken as irrelevant under Section 15-13-440. Aetna Cas. & Sur. Co. v. Golightly (S.C. 1985) 289 S.C. 408, 338 S.E.2d 153.