Boyce v. Lake
| Decision Date | 15 July 1882 |
| Citation | 17 S.C. 481 |
| Parties | BOYCE v. LAKE. |
| Court | South Carolina Supreme Court |
1. In action on a note the answer alleged that the plaintiff was a lunatic; at the trial plaintiff's attorneys admitted this allegation and moved, without previous notice, for the appointment of a guardian ad litem for the plaintiff, and the appointment was made. Held , that the amendment was within the discretion of the presiding judge, and this discretion was properly exercised.
2. It is only when the defendant so fully admits the plaintiff's case as to entitle plaintiff, in the absence of affirmative defence, to his judgment, that the defendant is entitled to open and reply.
3. The lapse of twenty years raises a presumption of payment as to sealed notes and bonds, which, though not a presumption of law, is a presumption of fact that has acquired an artificial force subject to be rebutted by such facts only as would revive an unsealed note barred by the statute of limitations. There must be in rebuttal something more than mere belief deduced from the weight of testimony; the stay law, the war and the lunacy of plaintiff are not circumstances sufficient to rebut this presumption.
Before KERSHAW, J., Newberry, November, 1880.
The case is fully stated in the opinion.
Messrs Suber & Caldwell and J. Y. Culbreath for appellants.
Mr J. H. Rion , contra.
In this case the plaintiff brought action upon a joint and several sealed note executed March 10, 1857, by E. P. Lake and James S. Spearman for $815.77, payable twelve months after date, to Chancellor Job Johnstone, or bearer or order, with a credit indorsed of $500 on March 9, 1858. Chancellor Johnstone, who had been the guardian of the plaintiff, died in 1862, and Carver Randall became his successor. This note fell into the possession of Randall, and by him was turned over to the plaintiff, who attained her majority in November, 1865, as a part of her estate.
Under these circumstances the plaintiff, on August 17, 1879, brought this action against Lake and Elizabeth Spearman, the executrix of James S. Spearman, who had died in 1878. The case came on for trial at the November term, 1880, for Newberry County. The defendants admitted the execution of the note, but insisted that the plaintiff was a lunatic and incompetent therefore to sue; also averred that the note being joint could not be sued, as to Spearman, the surety, he being dead, and relied on the lapse of time as evidence of payment.
At the trial it was admitted that the plaintiff was a lunatic and had been since 1868, and the counsel of plaintiff moved without previous notice for the appointment of a guardian ad litem , which motion was granted, against the protests of the defendants, and Silas Johnstone, Esq., was appointed. The defendants insisted that having admitted the execution of the note, they were entitled to open and reply on the trial. This was overruled. The case then went to trial, the defendants relying principally upon the defence of payment arising out of the lapse of time, twenty years and some months having elapsed since the credit of the $500, and the estate of Spearman having been proved to be solvent all this time.
On the question of payment the judge charged that the presumption of payment of a sealed note arising from the lapse of twenty years from its maturity, or new promise or part payment, can be rebutted by circumstances without positive proof of non-payment. " That the stay law of 1861-66, and the lunacy of the plaintiff, were circumstances to be taken into consideration by them in determining whether the note had been paid or not." That from all the facts as brought out in the case, they should base their verdict upon their belief whether the note as a matter of fact had been paid or not. His Honor refused to charge that the presumption of payment arising from the lapse of twenty years could be rebutted only by positive proof of non-payment.
The jury found for the plaintiff the sum of $817.52.
The appeal involves three questions of law: 1st. Was it error in the judge to allow the amendment at the trial as to the appointment of the guardian ad litem? 2d. Were the defendants entitled to open and reply? 3d. Was it error to charge that the presumption of payment arising from the lapse of twenty years could be rebutted by proof of facts and circumstances, such as the stay law, the war, the lunacy of the plaintiff, etc., without positive proof of non-payment?
The motion to amend by the appointment of a guardian ad litem was made upon the facts appearing in the pleadings. The lunacy of the plaintiff was set up in defendant's answer, and the necessity for the guardian ad litem appeared from that fact, which was admitted by plaintiff's counsel. There was no necessity for affidavits as to this fact, or as to any matter dehors the record affecting this motion. The defendants were not taken by surprise, nor did any right of theirs demand delay, nor could they be prejudiced by prompt action as to this matter.
Section 196 of the Code provides " that 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 the party, or mistake in any other respect." … This gives the court a wide latitude as to amendments, and while the power should not be exercised indiscriminately or to the surprise and prejudice of opposing parties, nor generally without giving the defendant the opportunity to resist and to answer the pleadings as amended, yet this matter must be left somewhat to the discretion of the presiding judge, and this court will not disturb the exercise of that discretion unless manifest injustice has been done. In this case we can see no reason whatever why the motion was objectionable because made without previous notice, or why time should have been given to answer. The material facts of the case, those upon which the matters at issue depended, were in no way altered by this amendment, and no new facts were needed by way of reply nor was there any surprise to the defendants. We think the power to amend was authorized by Section 196 of the Code, and that it was properly exercised here by the circuit judge.
The second ground of appeal is equally untenable. The 49th rule of the Circuit Court entitles the defendant to open and reply when he admits the plaintiff's whole case; when the admission is so full, as upon that alone in the absence of other defense, the plaintiff would be entitled to judgment. It will be observed that the admission here was not of this full character. It is true the execution of the note sued on was admitted, but the admission stopped at that point. The answer denies the right of plaintiff to sue, because a lunatic, and it averred that Spearman's estate could not be sued. In these denials there were involved questions both of fact and of law material to the plaintiff's case, not admitted. The 49th rule of the Circuit Court, therefore, does not apply.
This brings us to the consideration of the third and last ground of appeal, which presents the real question in the case. As to the character of the testimony necessary to overthrow the presumption of payment of a sealed note, which, it is admitted, the lapse of twenty years raises, the Judge seems to have laid down the rule that this was a question of belief on the part of the jury, and depended, as other facts, upon the weight of the testimony. That the lapse of twenty years would presume payment; but, after that period, this was an open question for the jury, the burden being upon the plaintiff to show to the satisfaction of the jury that the note had not been paid, which fact the jury was to determine as they would the truth of any other alleged fact, to wit, by the weight of the testimony bearing upon that question. In other words, the only effect of the lapse of twenty years is to change the position of the parties as to the question of payment.
Ordinarily and within the twenty years, the possession...
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