Agnew v. Adams

• Decision Date: 14 December 1885
• Parties: AGNEW v. ADAMS.
• Court: South Carolina Supreme Court

24 S.C. 86

AGNEW v. ADAMS.

Supreme Court of South Carolina.

December 14, 1885

1. A ruling of the Circuit Judge that the defendant is properly in court may be appealed from before final judgment.

2. A refusal to grant a motion for non-suit is a mere ruling and not appealable until after final judgment.

3. Appeal dismissed, the return not having been filed within the time prescribed by Rule II.

Appeal dismissed, the return not having been filed within the time prescribed by Rule II.

Messrs. Bachman & Youmans , for the motion.

Mr. A. C. Moore , contra.

The opinion of the court was delivered

PER CURIAM.

In this case a motion is made to dismiss the appeal upon two grounds 1st. Because the matters appealed from are not appealable 2d. Because appellant has failed to comply with the requirements of rule II. of this court.

For a proper understanding of the point made by the first ground upon which the motion is based, it will be necessary to make a brief statement of the facts. The action in this case was brought originally against Robert Adams, and he having died during its pendency, an order was granted by Judge Hudson, within a year, continuing the action against Eveline Adams, as administratrix of said Robert Adams. Thereupon a notice was served upon said Eveline Adams, together with copies of the original summons and complaint, of the order of Judge Hudson, and that the plaintiff would apply for judgment against her as administratrix as aforesaid. At the trial, the counsel for defendant contended that the action could not be maintained in the then state of the pleadings, inasmuch as, though there was an order authorizing the continuance of the action against the administratrix, yet the proper steps had not been taken to make her a party, inasmuch as no amended or supplemental complaint had been filed, or amended summons served upon her. The Circuit Judge ruled otherwise and the defendant excepted.

At the close of the plaintiff's case the defendant moved for a non-suit on several grounds, which it is not material to set out here. The defendant then introduced her testimony, and the jury rendered a verdict for the defendant, which, upon motion of plaintiff's counsel, was set aside and a new trial ordered by the Circuit Judge. The defendant appeals, substantially upon two grounds. 1st. For error on the part of the Circuit Judge in holding that the action was properly continued against her as administratrix. 2d. For error in refusing her motion for non-suit.

It will be observed that the only question which we are now called upon to decide is, not whether there is merit in the grounds of appeal, but whether the matters complained of are appealable. The first matter complained of presents the important question, vital to the jurisdiction of the court, whether the defendant has been made a party to the action in the manner prescribed by law, and we are not prepared to say that the decision of such a question is not appealable before final judgment is rendered.

The next inquiry is, whether the refusal of a motion for a non-suit can be appealed from before final judgment has been rendered. The code, in section 11, prescribes what is appealable and when the appeal may be taken. In its first subdivision it provides that an appeal may be taken, first from " any intermediate judgment, order, or decree involving the merits," & c. Second, from the final judgment. The second subdivision of that section provides for an appeal from " an order affecting a substantial right made in an action, when such order, in effect, determines the action, and prevents a judgment from which an appeal might be taken, or discontinues the action, and when such order grants or refuses a new trial, or when such order strikes out an answer, or any part thereof, or any pleading in an action." The cases provided for in subdivision three of this section need not be stated, as they are plainly inapplicable to our present inquiry. It is very clear that the refusal of a motion for non-suit cannot be brought under any of the cases provided for in subdivision 2, for while it may affect a substantial right, it does not in effect determine the action, or prevent a judgment from which an appeal might be taken, nor does it...