Brewton v. Shirley

• Decision Date: 10 January 1913
• Citation: 76 S.E. 988,93 S.C. 365
• Parties: BREWTON v. SHIRLEY.
• Court: South Carolina Supreme Court

76 S.E. 988

93 S.C. 365

BREWTON v. SHIRLEY.

Supreme Court of South Carolina

January 10, 1913

Appeal from Common Pleas Circuit Court of Spartanburg County; John S. Wilson, Judge.

"To be officially reported."

Action by Joseph Brewton against W. J. Shirley. From an order allowing plaintiff to amend his complaint, the defendant appeals. Reversed.

Sanders & De Pass, of Spartanburg, for appellant. Stanyarne Wilson and Gwynn & Hannon, all of Spartanburg, for respondent.

GARY C.J.

This is an appeal from the following order: "This cause came up before me at my last holding in the Spartanburg court, upon a demurrer to the complaint. I sustained the demurrer, stating at the time that I would allow the plaintiff to amend his complaint by setting up a cause of action, or causes of action, which may be properly united. It has been brought to my attention that the order signed by me at that time makes no provision for such leave to amend; and a motion is now made before me to have the said order to conform to my said decision, so as to allow such amendment. The omission above referred to should be incorporated in the order signed by me. It is therefore ordered that the said order be corrected by adding the following: It is further ordered that the plaintiff have leave to amend his complaint, as he may be advised, by stating therein a cause of action, or causes of action, which may be properly united in one action. May 30 1912. Nunc pro tunc.

John S Wilson, Circuit Judge."

The said order was granted at Manning, S. C., after the court at Spartanburg had adjourned, and his honor, Judge Wilson, had left that circuit.

The exceptions raise the question whether he had jurisdiction to grant the order allowing the plaintiff to amend his complaint. The case of Barrett v. James, 30 S.C 329, 9 S.E. 263, shows that he did not have such jurisdiction after he had left the circuit in which he sustained the demurrer. The presiding judge had the right to withdraw or amend the order sustaining the demurrer at any time before the adjournment of that term of the court; and the announcement that he would allow the plaintiff to amend his complaint was manifestly intended only to allow such right, provided the request to amend was made during the time he had control of the order sustaining the demurrer. There is nothing manifesting an intention on his part to dispense with any of the requirements in regard to amendments.

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