Beck v. Northwestern R. Co. of South Carolina

• Decision Date: 30 July 1913
• Citation: 78 S.E. 994,95 S.C. 339
• Parties: BECK v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

78 S.E. 994

95 S.C. 339

BECK v. NORTHWESTERN R. CO. OF SOUTH CAROLINA.

Supreme Court of South Carolina

July 30, 1913

Appeal from Common Pleas Circuit Court of Sumter County; J. S Wilson, Judge.

Action by Julia V. Beck against the Northwestern Railroad Company of South Carolina. From an order allowing defendant to amend its answer, plaintiff appeals. Affirmed.

L. D Jennings and R. D. Epps, both of Sumter, for appellant. Lee & Moise and Purdy & Bland, all of Sumter, for respondent.

GARY C.J.

This is an appeal from an order allowing the defendant to amend its answer in certain particulars.

The exceptions raise two questions, the first of which is whether his honor, the circuit judge, had the power to allow the amendments. The case of Taylor v. Railroad, 81 S.C 574, 62 S.E. 1113, which has been affirmed in numerous subsequent cases, is conclusive of this question, and shows that the exceptions raising this question cannot be sustained.

The next question is whether there was an abuse of discretion. The appellant has failed to satisfy this court that there was error in this respect, and the exceptions raising this question are also overruled.

Appeal dismissed.

WATTS, J.

I concur only in the result in the opinion of the CHIEF JUSTICE, for the reason that I am loath to disturb the action of the circuit judge in the exercise of his discretion, unless there is abuse, and I cannot say there is. Now, as to what effect the amendment allowed will have, in view of the decision of this court in Abbott v. Lumber Co., 93 S.C. 131, 76 S.E. 146, it is at this time unnecessary to consider .

FRASER J.

I cannot concur in the opinion of the CHIEF JUSTICE. The plaintiff claims to own a tract of land through which the defendant is operating a railroad, and that the railroad company is making excavations on the land along the railroad and carrying away the soil, that the land belongs to the plaintiff, and she is damaged thereby. She demands damages, and asks for an injunction. The suit commenced in July, 1910. Judge Memminger issued a restraining order. The case shows that the defendant made a motion before Judge Wilson on the 25th of July, 1910, to dissolve the restraining order, and it was granted.

The case shows that "during the argument on this motion one of the points made by one of the attorneys for the defendant was that the defendant company was well able to respond in damages, and therefore the restraining order should be dissolved." The answer of the defendant was sworn to on the 6th of August, 1910. The answer admitted the acts complained of and justified under claim of right. In October, 1912, the defendant applied to Judge Wilson for, and obtained, an order allowing it to amend its answer, setting up the defense of ""independent contractors." From this order, this appeal is taken.

I think this appeal ought to be sustained, and the order appealed from be reversed, for the following reasons:

1. Amendments are ordinarily within the discretion of the circuit judge, but there are limits. The defendant claimed to own the land and justified under a claim of right. It admitted that it was making the excavations and that it was using the dirt for its own purposes, and asked the court to allow it to continue. If they were doing this through Williams & Co., then under Abbott v. Sumter Lumber...