Jennings v. Parr

• Decision Date: 06 January 1899
• Citation: 32 S.E. 73,54 S.C. 109
• Parties: JENNINGS ,Clerk of Court, v. PARR.
• Court: South Carolina Supreme Court

32 S.E. 73

(54 S.C. 109)

JENNINGS , Clerk of Court,

v.PARR.

Supreme Court of South Carolina.

Jan. 6, 1899.

Pleadings—Amendment—After Case Remanded.

1. The supreme court not having made final disposition of a case on appeal, but having remanded it for further proceedings, the pleadings may be amended in the lower court, except as to the questions on which the supreme court rendered its decision.

2. Amendment in the lower court, on the case being remanded by the supreme court for further proceedings, is "before trial, " so that it is subject only to the provision of Code Civ. Proc. § 194, that it be "in furtherance of justice, " and not to the part thereof allowing amendments, when they do not change substantially the claim or defense, by conforming the pleadings to the facts proved.

3. An affidavit is not a prerequisite to an amendment.

Appeal from common pleas circuit court of Fairfield county; J. C. Klugh, Judge.

Action by Robert H. Jennings, as clerk of the court of common pleas for the county of Fairfield, in the state of South Carolina, against Henry L. Parr. Judgment for defendant, and plaintiff appeals. Affirmed.

James G. McCants and J. E. McDonald, for appellant.

Ragsdale & Ragsdale, for respondent, on the question of the right to amend, cited: Hall v. Woodward, 30 S. C. 564, 9 S. E. 684; Ruberg v. Brown, 50 S. C. 398, 27 S. E. 873; Trumbo v. Finley, 18 S. C. 315; Hey ward v. Williams, 48 S. C. 565, 26 S E. 797; Whaley v. Stevens, 21 S. C. 221; Mason v. Johnson, 13 S. C. 20; Cleveland v. Cohrs, Id. 397; Nesbitt v. Cavender, 27 S. C. 1, 2 S. E. 702; Wallace v. Railroad Co., 37 S. C. 341, 16 S E. 35; Whitmire v. Boyd (S. C.) 31 S. E. 306; Jacobs v. Gilreath, 41 S. C. 146, 19 S. E. 308, 310; Clayton v. Mitchell, 31 S. C. 204, 9 S. E. 814, and 10 S. E. 390; Martin v. Fowler, 51 S. C. 170, 28 S. E. 312.

GARY, A. J. For a full understanding of the facts of this case, it will be necessary to refer to the report of this case in 51 S. C. 191, 28 S. E. 82, 402.

His honor, Judge Klugh,. granted the following order: "This case comes before me on a motion by the defendant to be allowed to amend his answer in several particulars, set out in affidavits and served by him in this proceeding, with certain proposed amendments. After hearing argument of counsel, pro and con, I am of opinion that it will be in furtherance of justice to allow some of the amendments sought, and it is ordered that the defendant be allowed to amend his answer by adding thereto the ninth defense, which is set out in the proposed answer. The tenth proposed defense is not allowed. It is further ordered that the eleventh defense in the proposed answer be allowed. It is further ordered that the defendant be allowed to amend his answer, by setting up, as an equitable defense to any claim on the part of the children or heirs at law of Mary Ann Elkin, deceased, her liability as surety on the bond of W. B. Elkin, as guardian of the estate of the defendant; and any amount which may be found due on said bond may be set up as an equitable defense to the claim of said parties in interest herein. It is further ordered that, as against any claim by Mrs. Carrie G. Elkin, one of the alleged parties in interest for whom plaintiff sues, the defendant may amend his answer, by setting up as an equitable defense her liability as a surety on the bond of W. B. Elkin, deceased, as administrator of the estate of Henry W. Parr, deceased; and any amount found due on said bond may be set up as an equitable defense to any claim of hers in this action. It is further ordered that the plaintiff amend his summons and complaint by making the administrator of William B. Elkin, deceased, and the administrator of Mary Ann Elkin, deceased, parties to this action, and Carrie G. Elkin. It is further ordered that a copy of the answer, amended in conformity with this order, be served on the plaintiff's attorneys within 20 days, and that they have leave within 20 days from such service to plead thereto."

The ninth and eleventh defenses, which his honor allowed, are as follows: "Ninth. And for a ninth defense to the alleged cause of action defendant alleges: (1) That he has been informed, since the trial of this case on the circuit, and believes, that after the purchase of the Montgomery place by William B. Elkin, the said William B. Elkin purchased from his sisters, Mary Ann Elkin and Judith W. Ruff, their remainder in said place under the deed of Silas W. Ruff, as sheriff to William B. Elkin, and that he paid for the same, and was, therefore, the legal owner of both his and their interest during the time of his possession of the said tract of land, and as such liable, under the decision of the supreme court in this case, for rents and profits, and that the only claim that the parties plaintiff now have is as heirs at law of said William B. Elkin, and not as remainder-men." "Eleventh. And for an eleventh defense to the alleged cause of action defendant alleges that more than 20 years have elapsed since the maturity of said bond and mortgage, and he denies that there has been any partial payment or acknowledgment to rebut the presumption of payment arising from lapse of time."

The exceptions are as follows: "(1) Because his honor erred in allowing any amendment to the answer in this case, on the ground that the allowance of the same was contrary to the express directions of the supreme court, contained in its said judgment in said case. (2) Because his honor erred in allowing said amendment to the answer in this ease, upon the ground that he bad no power or authority to grant the same after the judgment of the supreme court had been rendered therein, with the directions contained therein. (3) Because his honor erred in allowing said amendments to said answer, when by the allowance of the same the matters adjudged by the supreme court were reopened...