Epstin v. Berman

• Decision Date: 05 October 1907
• Parties: EPSTIN et al. v. BERMAN et al.
• Court: South Carolina Supreme Court

58 S.E. 1013

78 S.C. 327

EPSTIN et al. v. BERMAN et al.

Supreme Court of South Carolina

October 5, 1907

Appeal from Common Pleas Circuit Court of Richland County; R Withers Memminger, Judge.

Action by Philip Epstin and others against Julius Berman and others. From an order requiring the complaint to be made more definite and certain, plaintiffs appeal. Affirmed.

J. S Muller and D. W. Robinson, for appellants.

Melton & Belser, for respondents.

JONES J.

This appeal is from an order of Judge Memminger requiring the complaint to be made more definite and certain. The complaint alleges, substantially: (1) That the Tree of Life is a religious corporation organized by the Israelites of the city of Columbia; (2) that the plaintiffs are members and the trustees of said corporation charged with the custody and control of its property; (3) that said corporation owns a certain lot, described, with a synagogue thereon, for use by its members for divine worship; (4) that the defendants Julius Berman, August Kohn, J. M. Cohen, C. C. Goldstein, J. M. Epstin, and August Meyer, are wrongfully claiming to be trustees of said religious body and corporation, and are assuming to act as such, and are wrongfully exercising control and custody of said lot and of said synagogue; (5) "that the plaintiffs have been damaged by the unlawful and wrongful acts of defendants in the sum of $5,000." The prayer of the complaint is that they be declared the rightful trustees of the corporation; that the claims of the defendants be declared wrongful, and they be prevented from further attempting to exercise the duties of such trustees; that plaintiffs be put in charge of said corporation; and "for $5,000 and costs." Judge Memminger held that the wrongful acts alleged in paragraph 4 of the complaint are of the most general character, and do not necessarily import substantial pecuniary damages to the plaintiffs; and that, if such damages are claimed, the particular acts and circumstances out of which such damages arise should be set forth in order to enable defendants to prepare to meet the plaintiffs' charge, and ordered plaintiffs to amend the complaint by stating with particularity, definiteness, and certainty by what precise acts, in what items, and how and in what way the plaintiffs have been damaged in the sum claimed. The plaintiffs except to the order on substantially two grounds: (1) That defendants were not called upon to meet any claim for special damages, but damages such as would naturally and necessarily result from the wrongs alleged; that the effect of the order would be to require plaintiffs to allege special damages which they do not choose to claim. (2) That compliance with the order would require plaintiffs to allege evidentiary matter.

An order to make pleadings definite and certain by amendment is appealable when it deprives the appellant of some substantial right. Bolin v. Railway Co., 65 S.C. 226, 43 S.E 665; Lynch v. Spartan Mills, 66 S.C. 16, 44 S.E. 93. The Code, however, invests the circuit court with power to order such amendment when the allegations of a pleading are so indefinite or uncertain that the precise nature of the...