Holladay v. Hodge

• Decision Date: 28 October 1909
• Citation: 65 S.E. 952,84 S.C. 91
• Parties: HOLLADAY et al. v. HODGE.
• Court: South Carolina Supreme Court

65 S.E. 952

84 S.C. 91

HOLLADAY et al. v. HODGE.

Supreme Court of South Carolina

October 28, 1909

Appeal from Common Pleas Circuit Court of Clarendon County; John S Wilson, Judge.

Action by Joseph Holladay, by guardian ad litem, and another against Joseph N. Hodge. Judgment for plaintiffs, and defendant applied for writ of prohibition. Granted, and plaintiffs appeal. Reversed.

Charlton Du Rant, for appellants. L. D. Jennings, for respondent.

HYDRICK J.

This action was brought in the court of a magistrate to recover the value of services rendered by plaintiff to defendant. The case was called for trial on September 2, 1908. The defendant appeared and demurred to the complaint for insufficiency, in that it appeared that plaintiff was an infant, and it did not appear that his father and mother were dead, or that they had refused to furnish him a home and living, or that he was forced to earn his own living, or that his parents had waived their right in any way to his services and earnings. The magistrate sustained the demurrer, but against the objection of defendant's attorney allowed the complaint to be amended by making Minnie Simpson, plaintiff's mother, a party, and alleging the death of his father. The defendant made affidavit that he was surprised by the amendment, and was not prepared to go to trial on the amended complaint, and asked for a continuance until a later date. The motion was granted, and the trial set for September 4th. When the case was called for trial on September 4th, the defendant appeared specially for the sole purpose of objecting to the jurisdiction of the court on the ground that the amended complaint had not been served on him. The court overruled his objection, and ordered the trial on. The defendant withdrew. The plaintiff proved his case, and magistrate gave judgment in his favor of $48. The defendant obtained from his honor, Judge Wilson, a rule requiring the magistrate and the plaintiff to show cause why a writ of prohibition should not issue, on the ground that the magistrate had no jurisdiction. On hearing the return to the rule his honor held that the magistrate had no jurisdiction and issued the writ. The plaintiff appealed.

Section 88 of the Code of Civil Procedure of 1902 provides the rules which shall be observed in magistrates' courts. The following subdivision of that section are pertinent Subdivision 2: "The pleadings may be oral or in writing if oral, the substance of them shall be entered by the magistrate in his docket; if in writing, they shall be filed by him, and a reference to them shall be made in the docket." Subdivision 6: "Either party may demur to a pleading of his adversary, or to any part thereof, when it is not sufficiently explicit to enable him to understand it, or it contains no cause of action or defense, although it be taken as true." Subdivision 7: "If the court deem the objection well founded, it shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded." Subdivision 11: "The pleadings may be amended at any time before the trial, or during the trial, or upon appeal, when, by such amendment, substantial justice will be promoted. If the amendment be made after the joining of the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment shall be granted. The court may also, in its discretion, require as a condition of an amendment, the payment of costs to the adverse party." The foregoing provisions of the Code show clearly that the magistrate had power to grant the amendment. They also show that it was the intention of the Legislature that the procedure in these courts should be...