Wichman v. Fox

• Decision Date: 18 March 1914
• Citation: 81 S.E. 180,96 S.C. 469
• Parties: WICHMAN v. FOX ET AL.
• Court: South Carolina Supreme Court

81 S.E. 180

96 S.C. 469

WICHMAN v. FOX ET AL.

Supreme Court of South Carolina

March 18, 1914

Appeal from Common Pleas Circuit Court of Charleston County; Devore Judge.

"To be officially reported."

Action by R. H. Wichman, doing business under the name of A. Wichman & Son, against J. R. and S. J. Fox. From an order allowing defendants further time to answer on condition of filing of a bond, they appeal. Dismissed.

W. A Holman and F. M. Bryan, both of Charleston, for appellants.

Howell & Gruber, of Walterboro, for respondent.

GARY C.J.

This is an appeal from an order of his honor, the circuit judge, who in allowing the defendants further time within which to answer the complaint, imposed as a condition that they should file a bond in the sum of $2,100, with sufficient surety conditioned to pay the plaintiff any judgment he might recover against them, on the ground that the imposing of the condition was an abuse of discretion on the part of the circuit judge.

The appellant's attorneys rely upon the case of Fitzgerald v. Case Co., 94 S.C. 52, 54, 77 S.E. 739 741. In that case the order allowing the defendant to file an answer to the complaint contained the condition that the case be docketed for the next ensuing term of court, and that the defendant offer no motion for a continuance, but go to trial at said term, if the cause could be brought to trial then. The court said: "The exception assigning error in imposing as a condition that the plaintiff should not make a motion for a continuance when the case should be called for trial must be sustained, as it is against public policy to prohibit a person from making a motion for a continuance when he has good grounds upon which to base the motion, as his rights might otherwise be seriously and irreparably affected."

The condition in that case that a motion should not be made at a subsequent term of the court for a continuance was very different from the one now under consideration. Such a condition is against public policy, for the reason that it would deny to another judge the power to exercise his discretion in granting relief to the defendant at a subsequent term of the court upon a state of facts then in existence which could not have been anticipated, and which may be wholly disconnected with the question under consideration, when the condition was imposed.

The rule is thus stated in Hall v. Railway, 81 S.C. 522, 62 S.E 848: "When, in...