Hill v. Hill

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: JONES
• Citation: 28 S.E. 309,51 S.C. 134
• Decision Date: 22 November 1897
• Parties: HILL et al. v. HILL.

28 S.E. 309
51 S.C. 134

HILL et al.
v.
HILL.

Supreme Court of South Carolina.

Nov. 22, 1897.

Continuance—Discretion of Court—Suit Pending in Another State—Actions by Administrators—Limitations—Written Acknowledgment—Pleading—Election—Appeal—Harmless Error.

1. It was not an abuse of discretion to refuse a continuance on the ground that another action was pending for the same cause of action in another state, where the court was not requested to grant it until after the jury were impaneled.

2. Code Civ. Proc. § 165, subd. 3, providing as a ground of demurrer "that there is another action pending between the same parties for the same cause, " does not relate to actions pending in another state.

3. Where a decree showed that there was a final settlement of an estate, and that a note executed in favor of decedent belonged to the heirs, but a subsequent order showed that such settlement was not agreed upon by one certain heir, to whom leave was granted to meet the administrators before the court, and correct errors in the former settlement, the administrators may sue on said note for the benefit of those interested, in view of Code, § 134, providing, "An executor or administrator * * * may sue without joining with him the person for whose benefit the action is prosecuted."

4. Letters may constitute a written acknowledgment of a debt due an estate, though addressed to the administrators as individuals, or though addressed to only one of two administrators.

5. Letters by a debtor, acknowledging that a note is due, but not expressing any intent not to pay it, are a sufficient written acknowledgment of a continuing contract, within Code, § 131, to remove the bar of limitations, though they express an expectation to pay from the proceeds of sale of certain property, but do not contain an unconditional promise to pay.

6. Where a first cause of action was upon a note, and the second cause of action was upon a debt evidenced by the same note, and the promise to pay implied by payments and written acknowledgments, and plaintiff elected to proceed upon the second cause of action, it was not error to allow the allegations of the complaint to remain unchanged, as it amounted to an amendment of the allegations of the second cause of action by the insertion of a copy of the note set out in the allegations of the first cause of action.

7. If an indorsement of payment on a note sued upon was incompetent under the pleadings, yet the error of admitting it was harmless, where the statutory bar had elapsed after such payment had been made.

[28 S.E. 310]

Appeal from common pleas circuit court of Spartanburg county; W. C. Benet, Judge.

Action by W. A. Hill and another, administrators of the estate of J. L. Hill, deceased, against W. C. Hill. From a judgment for plaintiffs, defendant appeals. Affirmed.

Duncan & Sanders and R. D. Gilmer, for appellant.

R. K. Carson and Bomar & Simpson, for respondents.

JONES, J. This action, commenced June 21, 1894, was to recover a debt originally evidenced by a promissory note executed by the defendant to the plaintiffs' intestate, J. L. Hill, April 27, 1885, for $3,915.86, payable one day after its date. The complaint declared on the note, credited February 18, 1888, with two credits, aggregating $587.94, as a first cause of action, and, as a second cause of action, alleged (1) the execution of the note;

(2) the payments, aggregating $587.94, February 18, 1888, and the promise by defendant to pay plaintiffs' intestate the said indebtedness;

(3) written acknowledgment and promise to pay said debt made in 1891 by defendant to plaintiffs; (4) the death of J. L. Hill, the payee named in the note, and the appointment and qualification of plaintiffs as his administrators; (5) that defendant was absent from the state when the cause of action accrued, and did not return to the state until in June, 1894; (6) that no part of said note had been paid, except the sums aforesaid; (7) that plaintiffs are the owners of the note. The answer admitted the execution of the note, denying all other allegations, and set up three defenses:

(1) That plaintiffs, as administrators, were not the owners of the note, and not entitled to sue;

(2) that the right to sue in this state is barred by the pendency of another suit in the state of North Carolina on this same note by the administrator of J. L. Hill appointed in North Carolina; (3) the statute of limitations. From the judgment entered on the verdict in favor of plaintiffs, the defendant appeals, on numerous grounds. These we will not attempt to consider in detail, but will, under general heads, substantially cover the material questions presented.

1. The Motion for Continuance. There was no error in the refusal of the motion for continuance. Such motions, as we have often held, are addressed to the discretion of the trial judge, and his decision thereon will not be interfered with by this court, unless in a clear case of abuse of discretion. The ground of the motion in this case was the pendency of another action between the same parties, for the same cause of action, in North Carolina. The motion was made after the defendant had announced himself ready for trial, and after the jury had been impaneled. While it was within the discretion of the circuit judge to continue a case on the ground named (1 Enc. PI. & Prac. 770), he did not abuse that discretion in refusing to continue.

2. In this connection we will consider the grounds of appeal based upon the ruling and charge of the judge excluding from the consideration of the jury the record in the action alleged as pending in the courts of North Carolina. It seems that an appeal was pending from a judgment of nonsuit against Wells, the North Carolina administrator of J. L. Hill, deceased. It is a general rule that the pendency of a former suit between the same parties for the same cause and relief is a ground for abatement of a subsequent suit, but it Is a well-established doctrine that the pendency of another suit in a foreign jurisdiction cannot be pleaded in the domestic forum, and that in the application of this rule the states of the Union are foreign to one another. 1 Enc. Pl. & Prac. 764; 1 Cent. Dig. 90; Smith v. Lath-rop, 44 Pa. St 326, 84 Am. Dec. 448, and note at page 456; West v. McConnell, 5 La. 428, 25 Am. Dec. 191, and note at page 195; Douglass v. Insurance Co., 138 N. Y. 209, 33 N. E. 938. As early as 1825, in the case of Chatzel v. Bolton, 3 McCord, 33, the supreme court of this state said, "There can be no doubt that the pendency of a suit in another state is no reason, of itself, for the delay of a cause in this." It follows that there was no error in excluding evidence of such...