Duncan v. Duncan

• Decision Date: 02 December 1912
• Citation: 76 S.E. 1099,93 S.C. 487
• Parties: DUNCAN v. DUNCAN.
• Court: South Carolina Supreme Court

76 S.E. 1099

93 S.C. 487

DUNCAN v. DUNCAN.

Supreme Court of South Carolina

December 2, 1912

Petition for Rehearing Dismissed February 8, 1913.

Appeal from Common Pleas Circuit Court of Richland County; R. E Copes, Judge.

"To be officially reported."

Suit by Louise T. Duncan against John T. Duncan. From a decree for plaintiff, defendant appeals. Affirmed.

McLauchlin & Smith, of Columbia, for appellant. Grier, Park & Nicholson of Greenwood, for respondent.

HYDRICK J.

On October 27, 1910, plaintiff commenced an action against defendant in the court of common pleas for Greenwood county. The allegations of the complaint, germane to the cause of action, are, in substance, as follows: That plaintiff is the wife of defendant, from whom she has permanently separated that she is owner in fee, in her own right, of certain lands in Richland county, which are particularly described; that defendant, against her objections and protests, continually trespasses on said property and collects the rents from her tenants, and will not account to her therefor; that he is unable to respond in damages, and she has no adequate remedy at law; that one of the tracts described was to be conveyed to defendant, and that she is ready and willing to convey it to him, upon his accounting to her for the rents belonging to her, which he has collected as aforesaid, and upon his paying a certain note for about $270 which she holds against him. She prays that he be enjoined from trespassing upon her said property, and from collecting the rents thereof, or interfering with her tenants; that he be required to account to her for the rents collected by him and for general relief.

In due time, defendant demurred to the complaint on two grounds, to wit, that it appeared upon the face thereof (1) that the court had no jurisdiction of the person of defendant; (2) that it had no jurisdiction of the subject of the action. The demurrer was not accompanied by the certificate of merit required by rule 18 of the circuit court, to wit: "A demurrer must, in every case, be accompanied by a certificate of the counsel filing it that it is meritorious, and not intended merely for delay."

Thereafter, on December 1, 1910, plaintiff commenced this action in the court of common pleas for Richland county. The following notice, addressed to defendant, was attached to the summons and complaint, and served upon the defendant: "You will please take notice that the action heretofore commenced by the above-named plaintiff against you as defendant, entitled 'County of Greenwood,' and to which action you filed a demurrer to the jurisdiction of the court, has been discontinued, dismissed, and abandoned by plaintiff, through her attorneys, Grier & Park, without cost to the said defendant, John T. Duncan. The insertion of 'Greenwood county' in the said cause was through inadvertence and oversight, the intention having been to have ' Richland county' appear where 'Greenwood county' was written. You are herewith served with summons and complaint in the suit of the said Mrs. Louise T. Duncan, plaintiff, against yourself, as defendant, in Richland county."

The allegations of the complaint in this action are the same as those of the complaint in the action commenced in Greenwood county. To the complaint in this action, defendant interposed the following demurrer: "The defendant demurs to the complaint herein, with notice thereto attached, for it appears upon the face thereof that there is another action pending between the same parties for the same cause." This demurrer was not accompanied by the certificate of merit required by the rule of court above quoted. To this demurrer was attached an affidavit of defendant, alleging the commencement of the action in Greenwood county, and that he had duly demurred to the complaint therein; that said action was brought in Greenwood county for the convenience of plaintiff; that it was to his inconvenience and expense; that he had not consented to its discontinuance, nor had the court ordered its discontinuance, nor had any reference been held to determine his costs and expenses; that he has a complete defense to the allegations of the complaint; that plaintiff is suffering no wrong, but seeks to obtain that to which she has no right, having deserted him, without notice or cause. thereafter plaintiff gave defendant notice that she would move the presiding judge at his chambers, at Camden, on March 16, 1911, at 10 o'clock a. m., for an order striking out his demurrer as frivolous. Defendant failed to appear at the hearing of the motion, which was heard at the time and place specified in the notice, and it was granted. Thereafter defendant moved the court for a rehearing of the motion on the ground, as stated in the notice, that he had "by inadvertence and excusable neglect failed to reach Camden and be present at the time said motion was heard, the defendant having mistaken the 16th instant for the 15th, and, on attempting to communicate with Judge Copes, he was informed that the judge had left Camden two days prior thereto, which was the 15th inst. Defendant asks as a matter of justice and equity that he be granted the opportunity to show that his demurrer was according to law, right, and proper, and also in good faith; that it was not frivolous, and that the motion of plaintiff should not have been entertained; and that under any circumstances defendant should have been granted the right to put in an answer. The defendant will ask for whatever relief may be right and proper." The grounds upon which the motion was made were stated only in defendant's notice, and they were not supported by affidavit. His motion was refused.

Thereafter, on March 29, 1911, the case was called for trial in open court, and, after hearing testimony, which was not reduced to writing, the court entered a decree in favor of plaintiff, in which it was found that the allegations of the complaint are true and that defendant is indebted to plaintiff in the sum of $1,409.17--$358.17 thereof being the amount due on the note mentioned in the complaint, and $1,051 thereof being the balance due plaintiff for rents of her property, which defendant had collected and failed to pay over to her--and judgment was given against defendant therefor, and plaintiff was awarded relief, according to the prayer of her complaint. From this decree and the intermediate orders mentioned, the defendant appealed.

His exceptions present the following assignments of error: (1) In striking out his demurrer as frivolous. (2) In refusing his motion for a rehearing of the motion to strike out the demurrer. (3) In striking out the demurrer on motion heard at chambers. (4) In refusing to allow him to answer. (5) In hearing the case on calendar 2 without notice to defendant, when it should have been heard on calendar 1 and tried by a jury. (6) In holding that defendant had failed to answer, when he should have held that the affidavit served with the demurrer controverted the allegations of the complaint and was an answer. (7) In adjudging that defendant pay his indebtedness to plaintiff as a condition of her being required to convey to him the lot which she alleged in her complaint was to be conveyed to him. (8) In rendering any decree in this action while the suit in Greenwood county was still pending. The remaining exceptions question the findings of the court as being contrary to the weight of the evidence.

Section 165 of the Code of Procedure provides: "The defendant may demur to the complaint, when it shall appear upon the face thereof [italics added] either: (1) That the court has no jurisdiction of the person of the defendant or the subject of the action; *** or (3) that there is another action pending between the same parties for the same cause." Section 168 provides: "When any of the matters enumerated in section 165 do not appear upon the face of the complaint, the objection may be taken by answer." Under the provisions of the Code above quoted, and the decisions of this court, a complaint is not demurrable on either of the grounds above stated, unless it appears upon the face thereof that the court has no jurisdiction of the person of the defendant, or of the subject of the action, or that another action is pending between the same parties for the same cause. Kiddell v. Bristow, 67 S.C. 175, 45 S.E. 174. By reference to the complaint, the substance of which has been hereinbefore stated, it will be seen that it does not appear upon the face thereof that the court had no jurisdiction of the person of the defendant, or of the subject of the action. It is clear, therefore, that the demurrer to the complaint in the Greenwood case could not have been sustained, and, if it had been heard on the merits, it must have been overruled on the ground above stated, and also on the ground that it was not accompanied by the certificate required by rule 18 of the circuit court. As to the merits of the grounds of the demurrer to that complaint: The action was for accounting for rents collected by defendant from plaintiff's tenants and to enjoin him from further trespassing upon her lands or interfering with her tenants. The action was therefore personal, and it was not necessary to bring it in the county in which the real estate was situated; but it could have been brought in the county of defendant's residence, without regard to the location of the lands. If brought in any other than the county of his residence, and defendant had failed to make objection in the proper way and take the proper steps to have the case transferred to the county of his residence for trial, the judgment would have been valid. Jenkins v. R. Co., 84 S.C. 343, 66 S.E. 409.

Moreover if defendant was a resident of some other county than...