First Carolinas Joint Stock Land Bank of Columbia v. Stuckey

• Decision Date: 07 June 1933
• Docket Number: 13647.
• Citation: 169 S.E. 843,170 S.C. 86
• Parties: FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. STUCKEY et al.
• Court: South Carolina Supreme Court

169 S.E. 843

170 S.C. 86

FIRST CAROLINAS JOINT STOCK LAND BANK OF COLUMBIA v. STUCKEY et al.

No. 13647.

Supreme Court of South Carolina

June 7, 1933

Appeal from Common Pleas Circuit Court of Lee County; P. H. Stoll Judge.

Action by the First Carolinas Joint Stock Land Bank of Columbia against George M. Stuckey and others. From an order striking out second answer and defense and counterclaim contained in defendants' second amended answer, George M. Stuckey and Agnes J. Stuckey appeal.

Affirmed.

Order of Judge P. H. Stoll directed to be reported follows:

This matter came before me at chambers in Kingstree, S. C., on January 24, 1933, for a hearing upon the motion of the plaintiff to strike out the second answer and defense and counterclaim contained in the second amended answer of the defendants George M. Stuckey and Agnes J. Stuckey, and also upon the demurrer of the plaintiff to the said second answer and defense and counterclaim.

Plaintiff's motion to strike out was based upon three grounds, the second of said grounds being that the said second answer and defense and counterclaim purported to be an amendment of the second answer and defense and counterclaim in said defendant's amended answer herein dated November 30, 1932, and as such was not proper or allowable (a) after plaintiff's demurrer to the said pleading sought to be amended had been sustained without leave to amend and (b) as a second amendment of a pleading previously amended as of course. After hearing arguments of counsel on this ground I decided that the plaintiff's motion should be granted and it was, therefore, unnecessary to hear arguments upon or to pass upon the questions raised by plaintiff's demurrer or by the first and third grounds of plaintiff's motion to strike out. These questions are expressly left open and undecided by this order.

The summons and complaint in this case were served upon the defendants George M. Stuckey and Agnes J. Stuckey on October 28, 1932, and these defendants served their original answer on November 15, 1932. On November 23, 1932, the plaintiff gave notice of a motion to strike out this answer as sham irrelevant and frivolous, and thereafter these defendants amended their answer as of course and served their amended answer on November 30, 1932. The plaintiff moved to strike out the original and the amended answers as sham, irrelevant and frivolous and also demurred to so much of the amended answer as was set forth under the caption "For a Second Answer and Defense and by way of Counterclaim" on the ground that the same failed to state facts sufficient to constitute a defense or counterclaim to the cause of action set up in the complaint. This motion and demurrer were heard by his honor, Judge E. C. Dennis, on December 9, 1932, who immediately after the conclusion of arguments by counsel announced what his decision would be, and thereafter issued his order dated December 21, 1932, requiring the defendants to amend their answer in certain particulars, striking out the so-called third answer and defense set forth in the amended answer and sustaining plaintiff's demurrer to the said second answer and defense and counterclaim of the amended answer on the ground that the allegations thereof failed to state a cause of action or a defense to the complaint. It appears that during the course of the arguments on the demurrer the question of whether the defendants should be granted leave to amend was brought to the attention of the court, but the order sustaining the demurrer did not grant such leave and contained no provision with respect to the right to amend the pleading demurred to.

The said order was filed on December 23, 1932, and the defendants were given notice of such filing on the same day. No appeal was taken by the defendants from the order but on December 22, 1932, they served their second amended answer which, in addition to making the amendments required of them, purported to amend as of course within twenty days after the demurrer the second answer and defense and counterclaim of the amended answer.

The defendants contended that the right to make such an amendment is conferred upon them by section 493 of the 1932 Code, but as I read that section it does not permit a second amendment of a pleading which has been previously amended as of course. Furthermore, in my opinion the matters set forth in the section of the pleading which the defendants are now seeking to amend have been adjudicated by the order of Judge Dennis sustaining the demurrer thereto. Inasmuch as that order failed to grant leave to amend and no appeal was taken therefrom and no application was made to Judge Dennis for a modification of the order, the defendants have only such rights as the order allows, and it is not within my province or jurisdiction to supersede the order by allowing or recognizing an amendment of the pleading with reference to which the order was passed. In so deciding, I am following the cases of McEachern v. Wilson, 154 S.Ct. 201, 151 S.E. 472, and Brewton v. Shirley, 93 S.C. 365, 76 S.E. 988, which expressly hold that a pleading cannot be amended as of course under the section of the Code relied upon by the defendants after a demurrer to such pleading has been sustained without leave to amend, even though the demurrer was heard within the period allowed for amendments as of course.

It is, therefore, ordered and adjudged that the plaintiff's motion to strike out the second answer and defense and counterclaim contained in the second amended answer dated December 22, 1932, of the defendants George M. Stuckey and Agnes J. Stuckey be, and the same is hereby, sustained, and that paragraphs numbers 7 through 10 inclusive, of the said second amended answer be, and the same are hereby, stricken out.

Robinson & Robinson, of Columbia, for appellants.

Melton & Belser, of Columbia, for respondent.

BLEASE Chief Justice.

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