Hair v. Carolina Portland Cement Co.

• Decision Date: 16 February 1927
• Docket Number: 12154.
• Citation: 136 S.E. 743,138 S.C. 472
• Parties: HAIR et al. v. CAROLINA PORTLAND CEMENT CO.
• Court: South Carolina Supreme Court

136 S.E. 743

138 S.C. 472

HAIR et al. v. CAROLINA PORTLAND CEMENT CO.

No. 12154.

Supreme Court of South Carolina

February 16, 1927

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by Thomas E. Hair and others, against the Carolina Portland Cement Company. From an order overruling the demurrer defendant appeals. Reversed.

Frierson & McCants, of Columbia, for appellant.

E. J Best and B. L. McDowell, both of Columbia, for respondents.

WATTS C.J.

"This action was commenced by the service of a summons and complaint on the defendant herein on the 4th day of November 1925. On November 18, 1925, the defendant served on the attorneys for the plaintiffs a notice of motion, returnable before Judge Sease on November 23, 1925, for an order requiring the plaintiffs to make their complaint more definite and certain, etc., as therein specified. This motion was argued before Judge Sease, on November 23, 1925, and he handed down a written order, dated on that day, wherein he granted defendant's motion, in part; his order also required the plaintiff's attorneys, within ten days after date of said order, to serve upon the attorneys for the defendant an amended complaint, in conformity with the provisions of the order. Accordingly an amended complaint was served herein on December 3, 1925. The defendant, on December 12, 1925, served another notice of motion returnable before Judge Townsend on December 19, 1925, for an order in the particulars therein mentioned; and, later on the same day, while expressly reserving and not waiving its rights under the notice of motion theretofore served, the attorneys for the defendant served upon the plaintiff's attorneys a demurrer to the amended complaint. Argument on the motion was heard by Judge Townsend on December 23d, and he announced his ruling orally on that day, but his formal order (while bearing date December 23, 1925) was actually drawn and signed on January 8, 1926. On this same day, to wit, January 8, 1926, argument was had before Judge Townsend on the defendant's demurrer to the amended complaint herein, and, after taking the matter under advisement, his honor, on the afternoon of the 8th of January, 1926, made an order overruling the demurrer. This order was filed on January 9, 1926. On January 16, 1926, the defendant's attorneys duly gave notice of intention to appeal to this court from the two orders of Judge Townsend...