Gillian v. Gillian

• Citation: 43 S.E. 386,65 S.C. 129
• Parties: GILLIAN v. GILLIAN.
• Decision Date: 19 January 1903
• Court: United States State Supreme Court of South Carolina

43 S.E. 386

65 S.C. 129

GILLIAN v. GILLIAN.

Supreme Court of South Carolina

January 19, 1903

Appeal from common pleas circuit court of Saluda county; Youmans Special Judge.

Action by M. L. Gillian against James L. Gillian. Judgment for plaintiff on default. From an order denying permission to demur, defendant appeals. Affirmed.

B. W Crouch, for appellant.

J. N O. Gregory, for appellee.

GARY A. J.

The facts of this case are thus stated in the argument of the appellant's attorney: "This case is what is known as a claim and delivery. The summons, complaint, and affidavit were served by the sheriff on the defendant (appellant) and the property taken into his custody on February 3, 1902. Two days later, defendant (appellant) gave bond, and took the property in question back into his custody. Afterward, on May 7, 1902, appellant, by his attorney, gave notice of his intention to move the circuit judge for permission to file an answer. This motion was heard on May 9, 1902, by his honor Leroy F. Youmans, special judge, presiding at Saluda, S. C. at May, 1902, term. This motion was overruled, and an order made denying defendant (appellant) the right to answer at that time. The case was then peremptorily called on calendar 1, whereupon counsel for defendant (appellant) moved to strike said cause from said calendar 1, for the reason that it had been improperly and irregularly entered thereon, because there were no proper directions for docketing indorsed on the papers signed by the attorney for the plaintiff (respondent). This motion was sustained by the presiding judge, and the case was struck from calendar 1. The presiding judge then proceeded to impanel a jury to try the case on calendar 3, where it had been properly docketed. After the jury was impaneled and sworn, and the complaint had been read, the defendant (appellant), by his attorney, offered in writing to demur to the plaintiff's complaint on the ground that it did not state facts sufficient to constitute a cause of action. The court refused even to hear the motion, stating that the defendant 'had no right to be heard, except for the purpose of cross-examining such witnesses as might be produced by the plaintiff.' The case was then proceeded with, and a verdict rendered for the plaintiff."

The appellant's exceptions are as follows: "(1) Because his honor Leroy F. Youmans, special judge, erred in holding that the defendant, when he had failed to answer the complaint at the proper time, had no right to orally demur to the complaint of the plaintiff upon the ground that the complaint did not state facts sufficient to constitute a cause of action, when he should have held that the defendant had the right to orally demur upon this ground at any time before the jury had been charged and had retired to reach a verdict. (2) Because his honor erred in holding that, the defendant having made default, and having offered to enter an oral demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, that said defendant did not have a right to be heard 'except for purpose of cross-examination of such witnesses as might be offered for the plaintiff, and that the court even doubted if the defendant had this right,' when he should have held that the defendant had a right to demur on the ground as stated, but had no right of cross-examination. (3) Because his honor erred in impaneling a jury and charging them with this cause while docketed on calendar 3, in that a jury trial cannot be had when a cause is docketed on calendar 3, and on no other calendar. (4) Because his honor erred in allowing a jury to try this cause and render a verdict therein while it was docketed only on calendar 3. (5) Because the verdict of the jury rendered is illegal and void, in that: (a) It was rendered in a cause docketed not on calendars 1 or 2, but on calendar 3 only; (b) it was written by the foreman upon the defendant's copy of the pleadings, and not upon the original pleadings, which were in court; (c) because said verdict is not in the form prescribed by law in such cases, in that '$70.00' should have been written out, and not expressed in figures."

We will first consider whether his honor the circuit judge erred in refusing to allow the appellant to interpose an oral demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Section 267 of the Code contains the following provisions: "Judgment may be had, if the defendant fail to answer the complaint, as follows: (1) In any action on contract the plaintiff may file proof of lawful service of summons and complaint on one or more of the defendants or of the summons, according to provision of section 151, and that no appearance, answer or demurrer has been served on him. It shall be the duty of the clerk to place all such cases on the default calendar, and said calendar shall be called the first day of the term. When the action is on a complaint for the recovery of money only, judgment may be given for the plaintiff by default, if the...