Katlor v. Hiller

• Decision Date: 07 October 1905
• Citation: 72 S.C. 433,52 S.E. 120
• Parties: KATLOR et al. v. HILLER et al.
• Court: South Carolina Supreme Court

52 S.E. 120

72 S.C. 433

KATLOR et al.

v.HILLER et al.

Supreme Court of South Carolina.

Oct. 7, 1905.

1. Judges—Powers of Succeeding Judge— Filing Answer.

An order of a judge allowing defendant time within which to file an answer after default is an administrative order, as distinguished from a final order, and does not involve the merits, so that a succeeding circuit judge has power to modify it by permitting an answer to be filed after a second default.

2. Same—Docketing Case.

A succeeding circuit judge may cause a case to be placed on its appropriate calendar, as the docketing of the case appertains to the orderly conduct of the business of the court and takes the place of notice of trial.

3. Trusts—Action—Trustee as Party.

Where plaintiff makes a trustee a party as such, and alleges that he is interested in the subject of the action, it was within the discretion of the court to require him to answer for the protection of his beneficiary.

Appeal from Common Pleas Circuit Court of Richland County; Purdy, Judge.

Action by Felicita Rosetta Kaylor and others against Louis P. Hiller and others. From an order permitting defendants to answer after default, plaintiffs appeal. Affirmed.

De Pass & De Pass and D. W. Robinson, for appellants.

W. S. Monteith and Thomas & Thomas, for respondents.

JONES, J. In this action to recover possession of real estate, the defendants failed to answer the complaint within 20 days after service of summons, and moved Judge Watts for leave to file an answer. Judge Watts, by an order, dated July 7, 1904, allowed defendants to file their answer within 20 days thereafter, upon payment to plaintiffs of $10. The defendants failed to comply with this order. They then, on November 18, 1904, served notice of a motion, to be made November 21, 1904, before Judge Purdy, for leave to file answer. When the motion was called, 3 days after notice, upon objection of plaintiffs' counsel to hearing the same for want of proper notice, the court of its own motion set November 24, 1904. as the day for hearing, over objection of plaintiffs' attorneys. The motion was heard on that day, and an order was granted by Judge Purdy allowing defendants to answer within 5 days, upon the same terms as imposed by the order of Judge Watts. In this order Judge Purdy on his own motion required Louis Paul Hiller, who was made defendant, both in his individual capacity and as trustee, to also file answer as such trustee. The plaintiffs in their appeal from this order present three questions: (1) Whether sufficient notice of the motion before Judge Purdy had been given. (2) Whether Judge Purdy had the right to allow answer to be filed after the expiration of the time fixed in the order of Judge Watts. (3) Whether Judge Purdy erred in ordering Louis Paul Hiller to file answer as trustee, on his own motion.

1. The exception as to want of sufficient notice was not alluded to in argument, and for that reason should probably be deemed abandoned. Appellants, however, have no ground for complaint, as the motion was not heard until six days after the notice thereof, when four days' notice was sufficient.

2. We think Judge Purdy had the right to allow defendants to file answer after the expiration of the time fixed in the order of Judge Watts. The order of Judge Watts belongs to the class of administrative orders as distinguished from final orders. The order does not involve the merits and makes no...