Harvey v. Hackney

• Citation: 35 S.C. 361,14 S.E. 822
• Parties: Harvey v. Hackney et al.
• Decision Date: 27 February 1892
• Court: United States State Supreme Court of South Carolina

14 S.E. 822

35 S.C. 361

Harvey

v.Hackney et al.

Supreme Court of South Carolina.

Feb. 27, 1892.

Pleading—Waiver of Defects—Partitions-Amendment.

1. The right to demur to a complaint on the ground that it does not state facts sufficient to constitute a cause of action is not waived by the granting of an order in the action framing the issues to be referred to a jury.

2. The complaint in partition alleged that one H. died seised and possessed of the land; that his title had, by descent, devolved on plaintiff and certain other heirs at law of H.; and that all of such heirs, save plaintiff and two others, conveyed the land of which partition was asked, to defendant. Held, that the facts stated were sufficient to show a cause of action.

3. The allegation that the other heirs conveyed such land to defendant is an allegation that they conveyed their undivided interests, in the absence of anything to show that they had acquired plaintiff's interest; and the allegation that defendant is now owner of the land is an allegation that defendant is owner of the undivided interests of those heirs who executed the conveyance.

4. Where a complaint alleged facts tending to show a cause of action for partition, and was defective merely in the faulty statement of the facts constituting the cause of action, such faulty statement may be cured by amendment Lilly v. Railroad Co., 10 S. E. Rep. 932, 82 S. C. 142, distinguished.

Appeal from common pleas circuit court of Spartanburg county; Withkrspoon, Judge.

Action by James F. Harvey against Mary E. Hackney, Nancy Harvey, Sallie Brown, and the Pacolet Manufacturing Company for partition and an accounting. The demurrer of the defendant company was sustained, and the complaint dismissed. Plaintiff appeals. Reversed.

Mr. Barrett and Stanyarne Wilson, for appellant.

Duncan & Sanders, for respondents.

McIver, C. J. Inasmuch as the question presented by this appeal arises upon a demurrer because the complaint does not state facts sufficient to constitute a cause of action, it will be necessary to state concisely the substantial allegations of the complaint. The allegations, omitting those merely formal, substantially are that Henry Harvey died intestate on the 15tb of June, 1861, seised and possessed of a certain tract of land containing 150 acres, more or less, the same being more specifically described in the complaint; that the said Henry Harvey left as his heirs his wife, Nellie, who likewise died intestate in the year 1876, and several children, who are named, among them David Harvey; that David Harvey died intestate in January, 1865, leaving as his heirs at law his widow, Nancy Harvey, and his two children, James F.Harvey, (the plaintiff herein,) and Mary, who, in 1880, intermarried with one Hackney; "that on the —day of—, 187—, all the heirs at

law of the said Henry Harvey, deceased, and Nellie Harvey, save the plaintiff and the defendants Nancy Harvey and Mary E. Hackney, conveyed a part of said tract of land, to-wit, (20) twenty acres, more or less, to Siddy Harvey, which was, on March 5, 1881, conveyed by the latter to N. R. Littlejohn, and subsequently by him to the defendant the Pacolet Manufacturing Company, which is now the owner thereof; " followed by a more specific description of the said 20 acres. Judgment is demanded for a partition of the 20 acres, and that the Pacolet Manufacturing Company be required to account for the rents and profits thereof. The defendants Nancy Harvey and Mary E. Hackney answered, admitting the allegations contained in the complaint, and joining in the prayer thereof. It is not stated specifically whether the Pacolet Manufacturing Company answered, but we infer that they did, for it does appear in the "case" that they raised an issue of title, and at October term, 1888, his honor Judge Kershaw ordered certain issues to be framed for a jury, directing that the case be placed on calendar No. 1, for the trial of such issues; and there the case remained until October term, 1890, and when the case was called for trial the Pacolet Manufacturing Company announcing itself ready for trial, the plaintiff called the attention of the court to the fact that the issues directed by Judge Kershaw to be framed had never been framed, and thereupon his honor Judge Wallace passed an order, on the motion of the attorneys for the Pacolet Manufacturing Company, framing the issues to be referred to a jury, and continued the case. At the January term, 1890, —manifestly a misprint for 1891, —the case was called for trial before his honor Judge Withehspoon, when, all parties having announced themselves ready for trial, the defendant the Pacolet Manufacturing Company interposed an oral demurrer upon the ground that the complaint did not state facts sufficient to constitute a cause of action, to which it was objected by plaintiff that said defendants, by the order framing issues to be tried by a jury, had waived their right to demur upon the ground stated, said defendants insisting that in considering the demurrer the court could riot...