Elkins v. South Carolina & G. R. Co

• Decision Date: 18 September 1900
• Citation: 37 S.E. 20,59 S.C. 1
• Court: South Carolina Supreme Court
• Parties: ELKINS. v. SOUTH CAROLINA & G. R. CO.

59 S.C. 1

37 S.E. 20

ELKINS.

v.SOUTH CAROLINA & G. R. CO.

Supreme Court of South Carolina.

Sept. 18, 1900.

APPEAL AND ERROR—SUFFICIENCY OF EXCEPTIONS.

An exception that the complaint alleges a cause of action, and his honor erred in sustaining a demurrer and in dismissing a complaint, is too general to raise any question on appeal.

Appeal from common pleas circuit court of Barnwell county; D. A. Townsend, Judge.

Action by Susan T. Elkins, administrator of Marion Varn, deceased, against the South Carolina & Georgia Railroad Company. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Davis & Best and R. C. Holman, for appellant.

J. W. Barnwell, for respondent.

McIVER, C. J. This is an appeal from the judgment of the circuit court sustaining a demurrer based upon the ground that the complaint does not state facts sufficient to constitute a cause of action. The plaintiff bases her appeal upon a single exception, which is couched in the following language: ''That the complaint alleges a cause of action, and his honor erred in sustaining the demurrer and in dismissing the complaint." The counsel for respondent takes the position that this exception is too general, and that under the settled rule the exception cannot be considered. This, therefore, presents the first question to be determined. The case of Weatherly v. Covington, 51 S. C. 55, 28 S. E. 1, cited by counsel for respondent, conclusively settles this question. As was indicated in Marshall v. Creel, 44 S. C. 485, 22 S. E. 597, and expressly suggested in the separate opinion in Weatherly v. Covington, supra, a good test whether an exception is too general is to inquire whether it is so framed as to involve the necessity of retrying the whole case just as it was presented to the circuit judge. Subjecting this case to that test, it is very manifest that the exception here is entirely too general. It simply makes the general question whether the facts stated in the complaint are sufficient to constitute a cause of action, without pointing out or even indicating any specific error committed by the circuit judge which this court is asked to correct, leaving this court to grope in the dark through the whole complaint in order to ascertain whether there is any defect in the statement of facts therein contained. This certainly ought not to be expected of an appellate tribunal. If it should be said that the "case" does not show that the respondent complied with the requirement of...