35 S.E. 558 (S.C. 1900), Whaley v. Lawton

Citation:35 S.E. 558, 57 S.C. 256
Opinion Judge:McIVER, C.J.
Party Name:WHALEY v. LAWTON.
Attorney:McCradys & Bacot, for appellant. Thos. B. Curtis and H. E. Young, for respondent.
Case Date:April 05, 1900
Court:Supreme Court of South Carolina
 
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Page 558

35 S.E. 558 (S.C. 1900)

57 S.C. 256

WHALEY

v.

LAWTON.

Supreme Court of South Carolina

April 5, 1900

Appeal from common pleas circuit court of Charleston county; J. C. Klugh, Judge.

Action by W. S. Whaley against W. Wallace Lawton for malicious prosecution. From an order overruling his demurrer to the first cause of action, and sustaining his demurrer to the second and third causes of action, but with leave to the plaintiff to amend the complaint, defendant appeals. Order reversed, except in so far as it sustained the demurrers to the second and third causes of action.

Page 559

McCradys & Bacot, for appellant.

Thos. B. Curtis and H. E. Young, for respondent.

McIVER, C.J.

This was an action for malicious prosecution, originally commenced on the 22d May, 1897. It seems that in the original complaint the plaintiff undertook to state five different causes of action,--two for false imprisonment, and three for malicious prosecution. To that complaint defendant demurred, upon the ground that several causes of action were improperly united, which was heard by his honor, Judge Ernest Gary, who passed an order sustaining the demurrer, but allowing the plaintiff to elect upon which of the several causes of action set out in the complaint he would go to trial. From that order there was no appeal, the plaintiff acquiescing therein, but, instead of electing the causes of action upon which he would go to trial, the plaintiff filed an amended complaint, leaving out the two [57 S.C. 258] causes of action for false imprisonment, and restating the three causes of action for malicious prosecution. To the complaint as thus amended the defendant again demurred, and moved to dismiss the complaint, upon the ground that the facts stated in neither of the three causes of action as set out in the complaint are sufficient to constitute a cause of action, and, in accordance with the rule of court, reduced to writing the grounds upon which are based his motion. As to the first cause of action, these grounds are stated as follows: "(1) Because it appears on the face of the complaint that the case was dismissed, and the plaintiff discharged, by T. G. Disher, a ministerial magistrate, who had no jurisdiction to hear and determine any case; (2) because there is no allegation that the plaintiff was adjudged not guilty of the offense charged, nor that he was acquitted, nor that he was finally discharged, nor that the prosecution was wholly ended and determined; (3) because it appears on the face of the complaint that no crime was charged against the plaintiff, and that, therefore, no action for malicious prosecution lies against the defendant." As to the second cause of action, the ground of demurrer was thus stated: "Because there is no allegation that the prosecution is wholly ended and determined, or that plaintiff has been adjudged not guilty of the offense charged, or that he has been acquitted, but, on the contrary, the allegation is that the prosecution is still pending in the court of the judicial magistrate for Charleston county." As to this third cause of action, the ground of the demurrer is the same as that just stated as to the second cause of action. These demurrers to the several causes of action, as stated in the amended complaint, came on to be heard before his honor, Judge Klugh, who passed an order (1) that the demurrer to the first cause of action be overruled; (2) that the demurrer to the second and third causes of action be sustained, with leave to plaintiff "to amend his complaint," if he be so advised, so as to set out more definitely the termination of the prosecution complained of. [57 S.C. 259] From this order defendant appeals, imputing (1) error to the circuit judge in not sustaining the demurrer to the first cause of action, upon the same grounds as those stated in the support of the demurrer; (2) error in granting leave to amend the allegations in the second and third causes of action, when it appears on the face of the complaint, which was duly verified, not only that there was no allegation that the prosecution was ended, but also that the prosecution was still pending in the judicial magistrate's court for the city of Charleston.

The appeal, therefore, presents two general questions: (1) Whether there was error in overruling the demurrer to the first cause of action; (2) whether there was error in allowing the plaintiff leave to amend the allegations of his complaint setting out the second and third causes of action, after sustaining the demurrer to those two causes of action.

The first question depends upon several subordinate inquiries: First, whether there was any allegation in the complaint on the first cause of action that the prosecution complained of...

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