Buist v. Williams

• Decision Date: 10 August 1909
• Citation: 83 S.C. 321,65 S.E. 343
• Parties: BUIST. v. WILLIAMS et al.
• Court: South Carolina Supreme Court

65 S.E. 343

(83 S.C. 321)

BUIST.

v.WILLIAMS et al.

Supreme Court of South Carolina.

Aug. 10, 1909.

Appeal and Error (§ 90^*)—Appealable Order—Affecting Merits.

In a proceeding by the surety on the bond of a trustee to have her mortgage securing the bond transferred to other and less valuable property than that on which it was given, resisted by those who under the allegations of the com-

plaint would be entitled to the trust fund by way of remainder on the death of plaintiff, the life beneficiary, without issue, an order was made allowing amendment to the complaint, to the effect that such persons would be entitled by way of remainder to only part of the property, and that certain other persons would be entitled to the rest, and allowing the making of the other persons parties. Held, that the amendment raised a question which, while it might ultimately affect the rights of the parties, in some future action, did not affect the merits of the case under consideration, and so, under Code Civ. Proc. 1902, § 11, the order was unappealable.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 602; Dec. Dig. § 90.*]

Appeal from Common Pleas Circuit Court of Greenville County; J. W. De Vore, Judge.

Action by Eliza F. Buist against J. Hudson Williams and others. From an order, defendants J. Hudson Williams and another appeal. Dismissed.

J. H. Hudson and Haynsworth, Patterson & Blythe, for appellants.

B. M. Shuman and Cothran, Dean & Cothran, for respondent.

GARY, A. J. This is an appeal from an order allowing an amendment to a complaint.

The facts are thus stated correctly in the argument of the appellant's attorneys:

"In 1877 and 1897 the plaintiff signed, as surety, two bonds given by her husband, the defendant Hugh B. Buist, for the performance of his duty as trustee of certain funds intrusted to him by order of court. To secure these bonds she executed two mortgages upon certain land, standing in her name. Desiring to cut this land into lots and sell it, she now brings this action, asking that these mortgages be removed from the land and transferred to other lands owned.by her, thus leaving this land clear of incumbrance, so that she can make good title thereto. This is resisted by the defendants J. Hudson Williams and William A. Williams upon the ground that the trust fund is larger than is alleged in the complaint, and that the land proposed to be so substituted would be inadequate to secure the trustee's bond.

"The pleadings raise a number of issues not touched by this appeal, which concerns one point only, namely, the granting of an order allowing an amendment. The plaintiff alleges, in paragraph 1 of her original amended complaint, that, under the deed creating the trust in question, the fund was to belong to her for life, and at her death to go to her issue; and she alleges, in paragraph 2: 'That the plaintiff has no issue, and in the events that have transpired the defendants J. Hudson Williams and William A. Williams are the persons who will be entitled to the proceeds of said property, in the event of the plaintiff dying without issue, living at the time of her death, if they shall survive the plaintiff.' The answer of the defendants admits these allegations. Thecause was referred to the master for Greenville county, who took voluminous testimony...