Fouche v. Royal Indem. Co. of N. Y.

• Decision Date: 01 April 1948
• Docket Number: 16062.
• Parties: FOUCHE et al. v. ROYAL INDEMNITY CO. OF NEW YORK.
• Court: South Carolina Supreme Court

47 S.E.2d 209

212 S.C. 194

FOUCHE et al. v. ROYAL INDEMNITY CO. OF NEW YORK.

No. 16062.

Supreme Court of South Carolina

April 1, 1948

William S. Hope, of Charleston, and T. B. Bryant Jr., of Orangeburg, for appellant.

Carlisle, Brown & Carlisle, of Spartanburg, for respondents.

STUKES, Justice.

This is an action brought in the Court of Common Pleas for Spartanburg County in April 1947 upon an administration bond given in the matter of an estate in the Probate Court of Orangeburg County. Code of 1942, Secs. 8975, 8976. In the complaint it is alleged that the plaintiffs are the children one posthumous, of the intestate, one V. T. Whaley, who lived in Orangeburg and died there in September, 1925. Plaintiffs' mother, decedent's widow, was the only other surviving heir at law and she was appointed administratrix and defendant was the surety upon her bond in the amount of $125,000.00 which was dated Sept. 18, 1925 that the administratrix failed to file returns, although she handled large sums of money and other personal property until her purported final settlement of the estate on Sept 23, 1929 when Letters Dismissory were issued to her by the Probate Court, and the plaintiffs, then infants, were not parties to the Probate Court proceeding and no guardian ad litem was appointed to represent them; that the administratrix took credit in the settlement for commissions in the approximate sum of $6,000.00, to which she was not entitled because she had failed of compliance with the law requiring annual returns of receipts and disbursements; that she further took credit in the settlement for $9,200.00 which represented $200.00 per month for each of the forty-six administration months for the care and support of plaintiffs, her children, whom she was charged by law to support and maintain and was financially able so to do; that the plaintiff, Fouche, is now twenty-five years old and plaintiff, Whaley, just twenty-one; that their mother, the administratrix, died about ten years ago, that plaintiffs were damaged in the sum of $15,200.00 with interest compounded annually from Sept. 23, 1929 by reason of the illegal credits aforementioned, which the administratrix took in her final settlement; that demand upon defendant for payment has been made and refused. The prayer is for judgment for the stated amount and interest.

The defendant first appeared specially to object to the jurisdiction of the court, which, however, is not involved in the appeal; then it successively moved (1) for a change of venue, (2) to bring in additional defendants, to wit, the Probate Judge of Orangeburg County and plaintiffs' stepfather who had married their widowed mother, and plaintiffs' half-sisters and half-brother, who were children of plaintiffs' mother's second marriage, and (3) answered, saving the preceding motions.

The answer contained denials and several additional, affirmative defenses. Plaintiffs demurred to the latter, which were embraced in paragraphs 12 to 18, both inclusive, of the answer; and moved for an order of reference to the Master. Defendant then moved for an order requiring a reply to the alleged new matter set out in its answer. The latter will be hereinafter discussed in such detail as is required for disposition of the pertinent questions argued before us.

Arguments upon the motions and demurrer were heard by the resident circuit judge at chambers on June 7, 1947 and he filed his order June 19, 1947 whereby all of defendant's motions were refused, plaintiffs' demurrer to the affirmative defenses in the answer was sustained, and the case was referred to the Master in Equity for Spartanburg County by a general order of reference. The reasoning and conclusions of the order will be referred to as may be convenient in consideration of the exceptions of the defendant, which is now appellant.

Taking the questions in the order presented, the first is that of venue, or rather the place of trial. Appellant's motion was to transfer the case to Orangeburg County and was upon the grounds (1) that the cause of action arose there, (2) that the convenience of witnesses and the ends of justice would be thereby promoted, and (3) that the subject matter of the action is contained in the records of the Probate Court of Orangeburg, which will be necessary to a determination of the controversy. The motion was supported by a counsel's affidavit in which were set forth, inter alia, the facts that respondents' guardian was Edisto National Bank of Orangeburg and during their infancy they resided there with, and were cared for by, their uncle who was also their step-father; that the respondent Whaley is a student at a medical college in Nashville, Tennessee, and respondent Fouche is a post-graduate student at Columbia University (see Roof v. Tiller, 195 S.C. 132, 10 S.E.2d 333, 132 A.L.R. 500); that there were numerous lawsuits involving the estates of respondents' father and mother in Orangeburg County where the records thereof are; that the witnesses would be inconvenienced by the distance to be traveled and the length of time necessary for them to absent themselves from home and business and the expense incident to maintenance away from home; and that a principal witness for defendant is the Orangeburg Probate Judge who lacks legal authority to close his office for a sufficient period to serve as a witness (in Spartanburg). The record indicates that these allegations were not traversed by counter-affidavit or otherwise. The complaint, which was verified by one of the respondents in the State of New York, contained no allegation relating to the residence of respondents. The order refusing change of venue includes the statement that 'several of the witnesses' reside in Spartanburg but this appears to be entirely without evidential support in the record and is not explained or enlarged in the order.

On this record before the circuit judge we are constrained to hold that sound discretion required that he change the place of trial to Orangeburg County. The showing that the witnesses would be convenienced and the ends of justice served by such change was all one way. There was, indeed, no effort apparent in the record to show to the contrary. This provision of the order under appeal is reversed for entry of order transferring the case to Orangeburg for trial. Code of 1942, Sec. 426(3). Patterson v. Charleston & W. C. Ry. Co., 190 S.C. 66, 1 S.E.2d 920. Gregory v. Powell, 206 S.C. 261, 33 S.E.2d 629.

Reversal for order changing the place of trial necessarily carries with it reversal of the order of reference to the Master of Spartanburg County. The proceeding will revert to its status before motion therefor was made, without prejudice to the right of respondents to move again for a reference, if they be so advised.

Appellant's motion to add defendants was upon the ground that they have an interest contrary to the claim alleged by plaintiffs and in order to establish the liability, if any, of the suggested additional parties and prevent a multiplicity of suits. The parties sought to be brought in as defendants were the Judge of Probate of Orangeburg County and S. K. Whaley, the brother of respondents' father who, after the latter's death, married respondents' widowed mother, and the minor children of this second marriage, viz., Thomas M. Whaley, Tena Whaley, and Parnell B. Whaley. The motion was supported by the contentions, in effect, that if liability be found against appellant in favor of respondents, recoupment of loss would be possible against the Judge of Probate for his dereliction of statutory duty in the matter of the handling of the estate; and that should liability be ultimately fixed upon the administratrix, who has since died and her property passed by will to her surviving husband and children, then such property in their hands might be subjected to payment of any judgment which may be rendered in favor of respondents.

The motion was refused upon the grounds, first, that it was a matter within the discretion of the court and, second, that the proposed addition of defendants would confuse the issues between appellant and respondents and that the latter are entitled to pursue appellant's alleged liability upon its bond without suing others in this action. This was a discreet disposition of the motion as will be seen by reference to the provisions of the Code of 1942, particularly Secs. 404 and 409, the latter in part as follows: 'When a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.' This means 'when there are other persons, not parties, whose rights must be ascertained and settled before the rights of the parties to the suit can be determined.' Phillips v. Clifton Mfg. Co., 204 S.C. 496, 30 S.E.2d 146, 148, 157 A.L.R. 1255. Otherwise the matter is discretionary. Weinberg v. Weinberg, 208 S.C. 157, 37 S.E.2d 507. See also Simon v. Strock, a tort case, 209 S.C. 134, 39 S.E.2d 209, 168 A.L.R. 596, and cases cited.

There is not presented in this case an effort to bring in as a defendant the appellant-surety's principal (she is dead) as in Bessinger v. National Surety Corp., 207 S.C 365, 35 S.E.2d 658; and with respect to her heirs or devisees and with respect to the Probate Judge, their alleged liability to appellant, if any, is not direct or original, but is a contingent or derivative liability which will arise, if at all, upon the establishment in this action of liability of appellant to respondents and, in the case of the devisees, will be dependent also upon the tracing into their hands of property formerly of their testatrix which may be subjected to payment of the liability or they held liable to the extent of its value. The observations...