Kirven v. Lawrence
| Decision Date | 13 August 1964 |
| Docket Number | No. 18255,18255 |
| Citation | 244 S.C. 572,137 S.E.2d 764 |
| Parties | Ex parte Kenneth G. Lawrence and Morgan Cusaac, Receiver, Petitioners-Appellants. In re Joan Lawrence KIRVEN and Eula R. Lawrence, Appellants-Respondents, v. Hattie P. LAWRENCE, Kenneth G. Lawrence, Wilbur H. Lawrence, Mary Lawrence Clements, Frances Elizabeth Lawrence, J. R. Lawrence, Betty Jo Harter, Joe Barr, and B. I. Lawrence, Defendants, Of Whom the First Seven (7) Named are, Respondents. |
| Court | South Carolina Supreme Court |
Rogers W. Kirven, Florence, for appellants.
J. B. Clements, George W. Keels, Florence, Emil T. Cannon, Timmonsville, for respondents.
This is an appeal from the Court of Common Pleas for Florence County from 3 Orders of the Honorable G. Badger Baker.
Plaintiffs in this action are seeking to recover from defendants certain farm land deeded on February 6, 1935, by Isaac M. Lawrence to his brother, J. R. Lawrence, who, at that time, held mortgages on said lands. In May, 1935, J. R. Lawrence died intestate, leaving a widow and 6 children who are the first 7 defendants herein. Isaac M. Lawrence died intestate in July, 1956. The plaintiffs, his widow and daughter, are claiming as his heirs-at-law. This action was begun by plaintiffs in September, 1956. During trial, in September, 1958, only one issue, out of the many raised by the pleadings, was submitted to the jury: 'Did Isaac M. Lawrence have sufficient mental capacity to execute the deed to J. R. Lawrence on February 6, 1935?' The jury found in favor of plaintiffs, holding that Isaac M. Lawrence did not have the requisite mental capacity to execute the deed. The trial Judge thereafter set the jury's verdict aside and declared a mistrial. On appeal to this Court, the verdict was reinstated. See Kirven, et al. v. Lawrence, et al., 235 S.C. 380, 111 S.E.2d 692.
Thereafter, defendants moved to amend and answer, pleading the Statute of Limitations and laches, ratification of the deed and restoration to the mortgage status existing on February 6, 1935, with an accounting for what has followed. They also moved for an Order of Reference.
Plaintiffs then moved for a writ of assistance to put them in possession of the property and for leave to amend and reply in the event the defendants' motions were allowed. In 1960, the above motions were heard but no ruling made thereon.
At a hearing March 31, 1961, defendants moved successfully for appointment of a receiver, before Judge Baker, who, at the same time, denied plaintiffs' motion for writ of assistance, holding that they were not then entitled to possession and permitted defendants to amend their answer to include the defenses of ratification and restoration but refused to allow them to plead the defenses of laches and Statute of Limitations. His Order to this effect was issued April 8, 1961, after Morgan Cusaac agreed to serve as receiver.
Irrespective of such Order, on the afternoon of April 8, 1961, plaintiffs either put or maintained a day laborer in occupancy of the dwelling on said lands. Meanwhile, the receiver entered into a lease agreement with Kenneth Lawrence, one of the defendants who had been in possession of the land through 1960.
The receiver and his lessee brought contempt proceedings against plaintiffs and their agents for alleged violation of their right to possession of the property. Hearing was held on April 28, 1961, before Judge Baker, who set aside and vacated the receiver's appointment by Order of April 29, 1961, and dismissed the contempt proceedings.
On May 2, 1961 the receiver and his lessee moved to set aside the Order of April 29, 1961, which vacated the receivership and for an Order validating and confirming the receiver's actions after the appointment of the receiver April 8 and before the April 29 revocation, more specifically the lease agreement with Lawrence. These motions were argued before Judge Baker on September 1, 1961, and denied by his Order of December 30, 1961. On May 2, 1961, defendants again petitioned for the appointment of a receiver, which motion was heard on September 1, 1961 and granted by Judge Baker in his Order of December 30, 1961.
Plaintiffs now appeal from portions of the Order of April 8, 1961, and that portion of the Order of December 30, 1961, which appoints a receiver. The receiver and his lessee appeal from the Order of April 29, 1961, and from that portion of the December 30, 1961, Order denying their motions made on May 2, 1961.
Plaintiffs contend first that the trial Judge abused his discretion in his April 8, 1961, Order allowing defendants to amend their answer.
Section 10-692, Code of Laws of South Carolina, 1962, reads as follows:
'The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by (a) adding or striking out the name of anmy party, (b) correcting a mistake in the name of a party or a mistake in any other respect, (c) inserting other allegations material to the case or (d) when the amendment does not change substantially the claim or defense, conforming the pleading or proceeding to the facts proved.'
The allowance of an amendment to pleadings under this Section is addressed to the discretion of the Circuit Judge and his action is not subject to review by the Supreme Court unless there has been an abuse of discretion. Monteith v. Harby, 190 S.C. 453, 3 S.E.2d 250; Vernon v. Atlantic Coast Line R. Co., 218 S.C. 402, 63 S.E.2d 53. The power to permit amendments in the furtherance of justice, given to the Court by the foregoing statutory provision, has received a very liberal construction by the Courts of this State. Johnson v. Abney Mills, 219 S.C. 231, 64 S.E.2d 641; DeLoach v. Griggs, et al., 222 S.C. 326, 72 S.E.2d 647. The Court's power of amendment to pleadings is so large that its exercise will rarely be disturbed; however, this power is not unlimited. Alamance Industries v. Chesterfield Hosiery Mill, 239 S.C. 287, 122 S.E.2d 648; Hicks v. Giles, 241 S.C. 129, 127 S.E.2d 196.
In Pickett v. Southern Rwy.-Carolina Division, 74 S.C. 236, 54 S.E. 375, this Court stated:
* * *'
It appears to be plaintiffs' position that Subsection (d) of Section 10-692, Code of Laws of South Carolina, 1962, was violated by allowing the defendants to plead the defenses of ratification and restoration. The Court's power of amendment under item (d) of this Section to such as 'does not change substantially the claim or defense' is applicable only to amendments proposed while the Court is hearing the evidence, or after it has heard it. Taylor v. Atlantic Coast Line R. Co., 81 S.C. 574, 62 S.E. 1113; Greenville Community Hotel Corp. v. Smith, 230 S.C. 239, 95 S.E.2d 262.
In instant case the Court has ordered a reference on all the remaining issues between the parties. This reference is yet to be held; therefore, subsection (d) is not applicable here, and in our opinion, there has been no showing that the trial Judge abused his discretion in permitting defendants to amend their answer by adding the defense of ratification and restoration. The proposed amendments apparently are in the furtherance of justice and material to the case; '[m]oreover, it has long been recognized that pleadings in equity should be more...
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