Chalmers v. Glenn

• Decision Date: 15 February 1883
• Citation: 18 S.C. 469
• Parties: CHALMERS v. GLENN.
• Court: South Carolina Supreme Court

18 S.C. 469

CHALMERS

v.GLENN.

Supreme Court of South Carolina.

Feb. 15th, 1883.

1. A cause of action exists when the legal rights of one party have been invaded by another, and unless facts to show the existence and the invasion of such rights are stated in the complaint, it will be held bad on demurrer.

2. A complaint which stated that money belonging to an estate had by order of court been lent to defendant under his bond to account “upon a final settlement of the estate” for the sum received, but which did not allege that any settlement had yet been had or attempted, or that defendant had failed to account, does not state facts sufficient to constitute a cause of action.

3. A clerk of court in accordance with the terms of an order of court, lent money in his hands to A. upon A.'s bond to account for it upon final settlement of the estate. Held, that a complaint against A. by a succeeding clerk stating these facts and asking to have the bond reformed so as to provide for the payment of interest, did not show any cause of action in the plaintiff.

Before PRESSLEY, J., Newberry, February, 1882.

The opinion states the case.

Mr. W. H. Lyles, for appellant.

Messrs. Jones & Jones, George S. Mower, contra.

The opinion of the court was delivered by

MR. CHIEF JUSTICE SIMPSON.

In 1866 a bill was filed in the Court of Equity for the partition of the real estate of G. W. Glenn, late of Newberry county, to which his heirs-at-law were parties, plaintiffs and defendants. A decree was made therein, directing a sale of certain portions of said real estate partly for cash and partly on a credit, and the proceeds ordered to be distributed according to the rights of the parties. In pursuance of this decree, Silas Johnstone, Esq., the then commissioner in equity for said county, sold the lands embraced in the order, and distributed the cash proceeds. The Court of Equity having been abolished, the case was transferred to the Court of Common Pleas under the act for that purpose, and Jesse C. Smith the clerk of the Court of Common Pleas, from time to time collected a part of the credit portion of the sales.

Afterwards to wit: in January, 1875, an order was made in the cause in the Court of Common Pleas to “loan” out to Dr. George W. Glenn, a son of the deceased and one of his heirs-at-law, such portion of the credit sales as Smith had collected, or that might be paid to him upon Glenn securing the payment either by personal security, or collaterals, or both, upon final settlement of the estate of the deceased. Pursuant to this order Smith, the clerk, loaned to George W. Glenn the funds in his hands amounting to $1,088.31, securing the same by the bond of Glenn, with Mattie S. Glenn and Thomas W. Weir as his sureties, the condition of the bond being “that Glenn should well and truly account for the sum of one thousand and eighty-eighty dollars and thirty one cents, upon a final settlement of the estate of George W. Glenn deceased.”

The bond was joint and several and made payable to Jesse C. Smith, clerk of said court, his successors in office and assigns in the penal sum of $2,200. The term of office of Smith expired, and E. P. Chalmers, the plaintiff, is the present clerk, or was when this action began. The prayer of the complaint is, first, to have the bond reformed so as to provide for the payment of interest to be paid annually on the amount lent to Glenn, alleging that this stipulation was left out by mistake in drawing the bond; second, for judgment for said sum of $1,088.31 with interest thereon, computed with annual rests, and, third, for such other and further relief as to the court may seem just, with costs.

The defendants demurred to the complaint (which stated only the above facts), upon the ground that it did not state facts sufficient to constitute a cause of action. Upon the hearing Judge Pressley sustained the demurrer, with leave to the plaintiff to amend his complaint by adding thereto such allegations as he might be advised, on payment of costs of the demurrer. From this order the plaintiff has appealed, alleging error in that the judge sustained the demurrer.

The question for us to consider is, does the complaint allege a cause of action? This involves the preliminary questions, what is a cause of action? and, to what extent shall it appear in the complaint so as to be sufficiently stated? There is but one form of action under the code, and at law, this action must be for one of three purposes, to wit: the recovery of money, the recovery of real estate, or the recovery of personal property. The cause of action must be that which gives the plaintiff the right as against the defendant to institute the action for the recovery...