Clement v. Dean
Decision Date | 18 April 1900 |
Citation | 35 S.E. 797,57 S.C. 438 |
Parties | CLEMENT v. DEAN, Sheriff, et al. |
Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county; R. C Watts, Judge.
Action by William J. Clement against George B. Dean, as sheriff, and another. From an order substituting the executors of a deceased defendant, the defendants appeal. Affirmed.
Duncan & Sanders, for appellants.
J. T Johnson and Ravenell & Gantt, for respondent.
When this case was called for trial on circuit, the defendants demurred to the complaint on the ground hereinafter stated. After argument of counsel, the circuit judge announced that he would sustain the demurrer, whereupon the plaintiff moved to be allowed to amend his complaint, and after argument, his honor signed the following order: The plaintiff appealed from said order, and his appeal was dismissed by the supreme court. 51 S.C. 319, 28 S.E. 942. Thereafter the plaintiff asked for an order substituting the executors of Fielding Cantrell, deceased. This was resisted by the defendants, who proposed the following order: "It appearing to the satisfaction of the court that a demurrer was interposed to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action against the defendants, and that leave was granted the plaintiff to amend his complaint upon the payment of costs of the term, and that more than twenty days had elapsed since the said order was passed without the plaintiff's complying or offering to comply with this order; and it further appearing that the plaintiff elected not to comply with the same, and appealed to the supreme court therefrom, and that said appeal has been dismissed, and the remittitur filed in the office of the clerk of this court on motion of Duncan & Wanders, attorneys for the defendants: Ordered, that the complaint be dismissed, and that the defendants have judgment against the plaintiff for the costs and disbursements of the action." His honor, Judge W. C. Benet, refused to pass the order proposed by defendants, and signed the following order: "It appearing that the defendant Fielding Cantrell has lately died intestate, ordered, that F. T. Cantrell and E. C. Jamerson, as executors of Fielding Cantrell, deceased, be, and they are hereby, substituted as parties defendant in the place and stead of Fielding Cantrell, deceased." The following statement appears in the record:
The appellants' exceptions complain of error on the part of the circuit judge as follows: The exceptions will not be considered in detail, as the only practical question raised by them is whether the fact that plaintiff's attorney informed the defendants that he would not amend his complaint, but would appeal from the order sustaining the demurrer, was a waiver of his right to amend.
The fact that the plaintiff appealed from the order of his honor Judge Watts, did not, alone, have the effect of depriving him of the right to amend. The plaintiff had the same time within which to amend after the remittitur was sent down when the former appeal was dismissed as he would have had under the order of his honor, Judge Watts, if the appeal had not been taken. Barnwell v. Marion, 56 S.C. 54, 33 S.E. 719. When the plaintiff heretofore appealed from the order of his honor, Judge Watts, the defendant gave notice that he would ask that the order of the circuit court would be sustained on the additional ground that by asking the court to be allowed to amend his complaint the plaintiff had waived his right to appeal. In disposing of the former appeal in this case the court said: ...
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