Fitzgerald v. J.I. Case Threshing Mach. Co.

• Citation: 77 S.E. 741,94 S.C. 52
• Parties: FITZGERALD v. J. I. CASE THRESHING MACH. CO.
• Decision Date: 17 March 1913
• Court: United States State Supreme Court of South Carolina

77 S.E. 741

94 S.C. 52

FITZGERALD v. J. I. CASE THRESHING MACH. CO.

Supreme Court of South Carolina

March 17, 1913

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

"To be officially reported."

Action by Kate Fitzgerald, as administratrix of John Fitzgerald deceased, against the J. I. Case Threshing Machine Company. From an order of the court alleged to be prejudicial to defendant, it appeals. Modified and affirmed.

See also, 77 S.E. 739.

Mordecai & Gadsden, Rutledge & Hagood, and W. A. Holman, all of Charleston, for appellant. Logan & Grace, of Charleston, for respondent.

GARY C.J.

This is an appeal from the following order of his honor, Judge Memminger: "Motion for leave to answer, under Code, § 195 (now 225). Plaintiff is suing for damages for the death of her husband, caused by a collision with an automobile alleged to have been under the control of defendant's alleged agents at Charleston. The complaint was served upon said alleged agent while he was in attendance upon the court of sessions at Charleston, awaiting the action of the grand jury upon an indictment, which had been handed out against him, for alleged murder of said plaintiff's intestate by means of said automobile collision. He reported the service as having been on the 7th instead of the true date, the 5th, of June. Defendant's attorneys, being advised only of the wrong date, failed to plead in time. Defendant's attorney states, and offers to incorporate in his affidavit his belief, that it has a meritorious defense. Affidavits showing how the error occurred and the extenuating circumstances were read and will be herewith filed. The decision of the court is that defendant hereby has leave to answer to the merits within 10 days from the filing of this order. The terms are that the answer must be to the merits that the same be docketed for the next approaching term of this court, for which this order is authority and direction to the clerk; that defendant offer no motion for continuance, but go to trial at said term, if the cause can be brought to trial then, that defendant pay to plaintiff, or her attorneys, the sum of twenty-five dollars ($25) upon the bringing in of said answer. And it is so ordered."

We will first consider the assignment of error "that the effect of said order was to prevent the defendant from making a motion to set aside the service of the summons on the ground that ...