Francis Marion Hotel v. Chicco

• Decision Date: 11 March 1925
• Docket Number: 11715.
• Citation: 127 S.E. 436,131 S.C. 344
• Parties: FRANCIS MARION HOTEL v. CHICCO. FRANCIS MARION HOTEL v. CHICCO ET AL.
• Court: South Carolina Supreme Court

127 S.E. 436

131 S.C. 344

FRANCIS MARION HOTEL v. CHICCO.

FRANCIS MARION HOTEL v. CHICCO ET AL.

No. 11715.

Supreme Court of South Carolina

March 11, 1925

Appeal from Common Pleas Circuit Court of Charleston County; J Henry Johnson, Judge.

Two actions by the Francis Marion Hotel, a corporation, against Vincent Chicco, Jr., and against Vincent Chicco, Jr., and another, copartners, doing business as Chicco Bros. From judgments for plaintiff in each case, defendants appeal. Judgments reversed, and new trial granted, unless plaintiff file remission or remitter, in which case judgments affirmed.

Watts J., dissenting in part.

Waring & Brockinton, of Charleston, for appellants.

Moffett & Hyde, of Charleston, for respondent.

W. C COTHRAN, A. A. J.

As these two cases are in all respects similar, except as to the amounts claimed, our decision will be confined to the first case only, it being understood that our conclusion applies with equal force to the second case also.

In December, 1919, the defendant signed a subscription to the capital stock of the plaintiff for 10 shares of the par value of $100 each. Payment was to be made as follows: Twenty per cent. upon organization and the balance in payments not exceeding 10 per cent. at intervals of not less than 60 days. There was considerable delay in raising the required capital stock and the charter was not granted by the secretary of state until February 3, 1922.

On September 2, 1922, this action was brought to recover the sum of $600, it being claimed that that amount was due upon the stock subscription of the defendant at the time of serving the complaint. The answer of the defendant admitted the corporate existence of the plaintiff, denied all other allegations of the complaint, and set forth several defenses which will be more particularly referred to hereafter. Prior to the day of trial, the attorneys for the plaintiff served notice of a motion to amend the complaint by demanding $1,000 instead of $600, stating that since the filing of the complaint the remaining amount due upon the subscription had become due. Over the objection of the defendant's attorney, the motion was granted. Upon exception to the ruling of the presiding judge, the following appears in the record:

"The Court: Mr. Waring, I am going to grant the motion and if you are surprised and cannot make a proper defense to the complaint as presented (amended?) I will grant you a continuance.

Mr. Waring: I cannot state that, your honor." Exceptions 1 and 2 impute error on the part of the trial judge in allowing the amendment, the position of the defendant being that as the balance of the subscription became due after the filing of the complaint that the plaintiff should have sought leave of the court to file a supplemental complaint rather than amend his original one. As opposed to this view, the plaintiff says that the power of amendment rests solely in the discretion of the presiding judge and, also, as the defendant was not taken by surprise and did not avail himself of the offer to continue the case, he cannot be heard to complain.

That the defendant was not surprised in this matter is conclusively shown by the very candid statement of his counsel. What, however, would have been the effect of his acceptance of the offer of the trial judge? It would have amounted to an abandonment of his objection that the amendment was improper, and this could not be forced upon him. An acceptance of the offer to continue would have been an acknowledgment of the correctness of the ruling of the court and a waiver of the objection in so far as future trials were concerned.

The question, therefore, is strictly as to whether or not the amendment was proper, and to this we will now direct our inquiry. In 21 R. C. L. 503, the following statement is sustained by many authorities:

"It is the office of a supplemental pleading to bring forward facts that have transpired since the institution of the suit."

In 31 Cyc. 499, the rule is thus stated:

"The rights of parties to an action are ordinarily to be determined by the state of facts existing at the time of its commencement. If new matter subsequently arises, it cannot ordinarily be introduced under the original pleadings, or be brought in by amendment; but should be taken advantage of by a supplemental pleading."

The rule is likewise pronounced as established law in Bliss on Code Pleading (3d Ed.) § 432. These authorities are cited merely to show the general and undisputed rule on the subject. Recourse will now be had to the decisions of our own court of last resort.

The leading case on the subject is McCaslan v. Latimer, 17 S.C. 123. Chief Justice Simpson, lovable and able, thus expresses the rule:

"Both amendments and supplemental pleadings are provided for in the Code, but there is a marked distinction between the two. They are allowed upon different conditions and are intended to meet different contingencies. They are not interchangeable remedies, to be employed indifferently at the choice of the pleader, but distinct and separate proceedings, each depending upon its own principles and governed by its own facts. Where the one is required, it is error to substitute the other."

Further, considering the two sections of the Code relating to amendments and supplemental pleadings and the difference between them, the opinion says:

"The mind would reach this conclusion simply upon reading these different sections and without the aid of commentators. But when we find that the best annotators of the Code have placed this construction upon these sections, this view is not only strengthened and confirmed, but is left without doubt."

Other authorities cited by the then Chief Justice in this case are equally clear and convincing.

Again the same Chief Justice says in Moon v. Johnson, 14 S.C. 434, citing McCullough v. Colby, 17 N.Y. Super. Ct. 603:

"Facts accruing

...