Citizens' Savings Bank v. Efird

• Decision Date: 10 October 1913
• Citation: 79 S.E. 637,96 S.C. 18
• Parties: CITIZENS' SAVINGS BANK v. EFIRD et al.
• Court: South Carolina Supreme Court

79 S.E. 637

96 S.C. 18

CITIZENS' SAVINGS BANK v. EFIRD et al.

Supreme Court of South Carolina

October 10, 1913

Appeal from Common Pleas Circuit Court of Lexington County; I. W Bowman, Judge.

"To be officially reported."

Action by the Citizens' Savings Bank against D. F. Efird and others. From a judgment of nonsuit, plaintiff appeals. Reversed.

J. B Wingard, of Lexington, for appellant. Efird & Dreher and Thurmond, Timmerman & Callison, all of Lexington, for respondents.

HYDRICK J.

Under date of February 6, 1907, the defendants made and delivered to McLaughlin Bros. their joint and several note, payable to their order one year after date. On December 6, 1907, the payees discounted said note at the Citizens' Savings Bank, of Columbus, Ohio. Thereafter, on October 30 1909, the Ohio Trust Company, being the owner of the entire capital stock of the Citizens' Savings Bank, took over all the assets of the bank, including said note, and on that day the stockholders of the Ohio Trust Company changed its corporate name to the Citizens' Trust & Savings Bank. Thereafter this action was brought on said note in the name of Citizens' Savings Bank, and it is alleged in the complaint that said bank is the owner and holder of said note. That allegation is, among others, denied by the defendants. When the facts above stated came out in the evidence introduced by plaintiff at the trial, the defendants moved for a nonsuit, on the ground that there was a fatal variance between the allegation and proof as to the ownership of the note sued on. The plaintiff's attorney moved for leave to amend by changing the name of the plaintiff from Citizens' Savings Bank to the Citizens' Trust & Savings Bank, so as to make the allegation conform to the evidence. The court refused the motion and granted a nonsuit.

The Code of Procedure was adopted for the purpose of getting the courts away from the technicalities of common-law pleading and practice, under the rules of which the utmost precision was required, and the most intricate distinctions were drawn, which too frequently sacrificed substance to form and defeated substantial justice. Hence the Code has made liberal provisions with respect to allowing amendments, and the Legislature has declared that the Code must be liberally construed, with the view to the doing of substantial justice. In the chapter which deals with "Mistakes in Pleadings and Amendments," we find section 220, which reads: "No variance between the allegation in a pleading and the proof shall be deemed material unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just."

Section 221 provides that, where the variance is not material, the court may direct the fact to be found according to the evidence, or order an immediate amendment.

Section 222 provides that, where the allegation of the cause of action or defense is not proved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance within sections 220 and 221, but a failure of proof.

Section 224 provides: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party; or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved."

Section 227 reads: "The court shall, in every stage of action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect."

The facts and circumstances warrant no other conclusion than that the action was brought in the name of Citizens' Savings Bank through mistake. It is equally clear that defendants have not been misled thereby to their prejudice in maintaining their defense on the merits. At any rate, they have not even alleged that they have been so misled, to say nothing of their failure to even attempt to comply with the requirement of section 220 by proving to the satisfaction of the court wherein they have been misled.

In Roundtree v. Railway, 72 S.C. 477, 52 S .E. 231, Mr. Chief Justice Gary, delivering the opinion of the court, quotes with approval from Ahrens v. Bank, 3 S. C. 410, as follows (the section numbers in the quotation being changed to correspond with the numbers of the same sections in the Code of 1912): "Under section 220, no variance is to be regarded as material unless it has actually misled the party, and in that case his remedy is to satisfy the court immediately, by proof by affidavit, that he has been so misled. The effect of such proof is not to prevent the court from allowing an amendment to such case, but to entitle the party prejudiced by such amendment either time, or such other compensatory terms and conditions as may be reasonable. The object of the Code is to secure to parties, acting in good faith, the fullest right to rectify, by amendment, any defect in pleading the result of misapprehension, inadvertence, or accident, but at the same time to protect, as far as possible, the substantial rights of the party prejudiced by such amendment. If the party prejudiced by such variance does not take advantage of the remedy afforded by section 220, then, under section 221, it is the duty of the court to disregard the variance as immaterial, and either to order an immediate amendment, or to direct the fact to be found according to the evidence. Section 222 was intended to guard against the application of sections 220 and 221 to cases which are not, properly speaking, cases of variance, but where the party has proved, on the trial, a state of facts foreign to the allegations of the pleadings, and having the effect to leave the facts alleged in the pleadings unproved in their 'entire scope and meaning.' It is obvious that variances, involving nothing more than technical differences...