Brown v. Easterling

• Decision Date: 13 March 1901
• Citation: 38 S.E. 118,59 S.C. 472
• Parties: BROWN v. EASTERLING.
• Court: South Carolina Supreme Court

38 S.E. 118

59 S.C. 472

BROWN v. EASTERLING.

Supreme Court of South Carolina

March 13, 1901

Appeal from common pleas circuit court, Barnwell county; J. H Hudson, Special Judge.

Action by Jennie H. Brown against Annie P. Easterling.From an order extending time to serve an amended complaint, defendant appeals.Reversed.

The following are the affidavits referred to in the opinion:

"Personally came J. J. Brown, who says, on oath: That he was and is the attorney of record in the above cause, and had associated with him Robt.Aldrich, Esq.That when the complaint was read by deponent at the November term, 1899 of this court at Barnwell, an oral demurrer was interposed by defendant's attorney, and the oral demurrer was sustained.The judge, however, held that plaintiff was entitled to amend her complaint, against the protest and arguments of defendant's counsel.That, while it was proper and right that the order allowing plaintiff to amend her complaint should have been drawn by plaintiff's attorney, the defendant's attorney undertook to prepare the order, the judge refusing to sign the first order, drawn by plaintiff's attorney, and requiring such changes therein before signature, as had been stated in rendering his decision.That no time for amending and serving the amended complaint had been spoken of by his honor, or fixed or alluded to, and, it being something wholly unusual and out of place for the defendant's attorney to fix the time in which a plaintiff should prepare and serve an amended complaint, the deponent was totally and wholly surprised when he undertook to serve the amended complaint, to be informed by defendant's attorney that the time was past, and more than twenty days had expired.That the associate of deponent, Robt.Aldrich, had requested deponent to allow him to see the amended complaint before it was served.That deponent had prepared the amended complaint, and was ready to serve it when he submitted it to his associate.That the time was soon after the end of the November term of court, but the said Robt.Aldrich was engrossed in the business usually accumulating immediately after the term, the preparation for the supreme court, and the regular session of the legislature, so that he could not give the matter immediate attention, and for some days the service of the amended complaint was delayed.That this deponent went to said Robt.Aldrich five or six times, requesting him to examine the amended complaint, so that it might be forthwith served, and possibly a trial be had at the extra term to be held in February.That deponent was satisfied his associate could not give that deliberate and careful attention as was necessary, under the circumstances, to the amended complaint, and he therefore awaited with impatience the opportunity for proper investigation.If this deponent had known that any time had been fixed in the order for amending and serving the said complaint, he would not have hesitated to serve it, but he was totally ignorant of any time being fixed; it being unusual, almost without precedent, and likely to take the party to whom the pleading belonged by surprise.Deponent further says he is very anxious to try the case, and has been since it has been on the calendar; that only his client is being injured or damaged by delay, the plaintiff claiming that the defendant is in possession of her rights and property without paying for them, and that plaintiff will be ready and insist on trial at the ensuing March term of this court.J. J. Brown, Plaintiff's Attorney.

Sworn to before me this 23d day of February, 1900.W. Gilmore e Simms, C. C. P. [L. S.]"

Before me personally appeared Robt.Aldrich, Esq., who, being duly sworn, deposes and says: That he is associated with J. J. Brown, Esq., as plaintiff's attorney herein.That the case was called for trial at the November term of this court, and proceeded with.An oral demurrer was interposed by defendant's attorney, and the same was sustained by the presiding judge, his honor, D. A. Townsend, and the plaintiff was allowed to amend her complaint by the ruling of the judge.That there was nothing said by the judge as to the time in which the amended complaint was to be served, and it constituted no part of the ruling of the judge in the discussion of the motion to be allowed to amend.That, immediately after the adjournment of the November term of court, deponent became very much engrossed in the business of his office, which is busiest at that season, as attorney for the bank and two railroads, and in getting ready for the supreme court, in which he had five appeals, and preparing to go to the legislature, of which he is a member; and accordingly, when his associate, Col. Brown, brought him the amended complaint to read and consider, which he did a short time after the adjournment of the November term, deponent, not supposing there was any need for expedition in the matter, laid it by for more urgent matters.Finally, when he did get an opportunity to read and consider it, and turned it over to Col. Brown for service, he was shocked to learn that defendant's attorney claimed that it came too late, as the order allowing the amendment limited the time in which it should be served to twenty days from the date of the order.That this deponent does not remember being in court when the order was signed, does not remember to have heard it read, and took his impressions of it from the rulings of the judge upon the motion to amend, in which nothing was said about time.That the failure to serve the complaint within the time was due to the facts as stated, and operates as a surprise to plaintiff's attorneys, and they respectfully submit herewith a case of excusable neglect.That nothing is lost to defendant by delay of plaintiff, and the plaintiff is very anxious to try the case, and will do so at the next term of court, if allowed to serve her complaint as deponent is informed.Robt.Aldrich, Plaintiff's Attorney.

Sworn to before me this 23d day of February, 1900.W. Gilmore Simms, C. C. P. [L. S.]"

J. O. Patterson, for appellant.

Robt.Aldrich and J. J. Brown, for respondent.

McIVER C.J.

This action came on for hearing before his honor, Judge Townsend at the November term of the court of common pleas for the county of Barnwell in the year 1899.At the hearing the defendant demurred to the complaint upon the ground that the facts stated therein were not sufficient to constitute a cause of action.The demurrer was sustained by an order bearing date 21st November, 1899, in which it was further ordered "that the plaintiff have leave to amend her complaint as she may be advised, and that the said amended complaint be served upon the defendant within twenty days from this date [21st November, 1899], and that the defendant have twenty days thereafter in which to serve her answer thereto."The amended complaint was not served within the time allowed for that purpose, and, so far as appears from the record before us, no further action was taken in the matter until the 23d of February, 1900,--more than two months after the expiration of the time limited for the service of the amended complaint.On that day the plaintiff gave notice of a motion, based upon certain affidavits which are set out in the "case," and upon the pleadings and proceedings in the cause, that she would, at a time and place stated, move "for an order allowing the plaintiff to serve her amended complaint on the defendant, and such other and further relief as may be just and proper."The affidavits referred to in the notice were made by J. J. Brown, Esq., the attorney of record for the plaintiff, and by Robert Aldrich, Esq. who had been brought in as assistant counsel for the plaintiff, and should be incorporated by the reporter in his report of the case.This motion was heard on said affidavits and the pleadings and proceedings in the cause by the Honorable Judge Hudson while holding a special term of the court of common pleas for the county of Barnwell, as a special judge duly appointed for that purpose; and "after hearing Messrs. Aldrich and Brown for the motion, and Mr. Patterson contra,"he granted and order, bearing date the 2d March, 1900, "that the plaintiff have five days from this to serve her amended complaint on the defendant, and that defendant have twenty days from the date of service to serve her answer thereto."From this order defendant appeals upon the following grounds: "Because his honor, Judge J. H. Hudson, erred in allowing the plaintiff further time to serve her...