Lane v. Home Ins. Co.

• Decision Date: 29 March 1939
• Docket Number: 14852.
• Citation: 2 S.E.2d 30,190 S.C. 84
• Parties: LANE v. HOME INS. CO. et al.
• Court: South Carolina Supreme Court

2 S.E.2d 30

190 S.C. 84

LANE v. HOME INS. CO. et al.

No. 14852.

Supreme Court of South Carolina

March 29, 1939

E H. Henderson, of Bamberg, and Fred B. Helms, of Charlotte, N C., for appellant.

Kearse & Kearse and B. D. Carter, all of Bamberg, for respondent M. M. Lane.

C W. McCants, of Columbia, for respondentUniversal Credit Co.

Lide & Felder of Orangeburg, for respondentHorne Motors Inc.

BAKER Justice.

On March 12, 1938, respondent commenced an action in tort in the Court of Common Pleas for Bamberg County against the appellant, Universal Credit Company and Horne Motors, Inc., as defendants, alleging in the complaint that the defendant, Horne Motors, Inc., was the agent of appellant and Universal Credit Company.Horne Motors, Inc., is a South Carolina corporation with its principal place of business in the City of Orangeburg, County of Orangeburg.The other defendants are foreign corporations.

On March 26, 1938, the above named defendants served on plaintiff a notice of a motion for a change of venue from Bamberg County to Orangeburg County.

On March 29, 1938, and before the date the venue motion was noticed to be heard, and before any answers had been served, respondent amended his complaint by eliminating as defendantsHorne Motors, Inc., and Universal Credit Company, and attached to the amended complaint was a new summons in and on which the names of the two defendants last above named did not appear.This "amended complaint" and new summons were served on appellant on March 29, 1938, and copies thereof, together with a notice that Universal Credit Company and Horne Motors, Inc., had been eliminated as defendants, were mailed to the last mentioned parties to the original action.

On April 1, 1938, the appellant, under and with a reservation of its rights, served an answer to the original complaint, which answer was a general denial of each and every allegation of the complaint.

On April 5, 1938, an order consented to by the attorneys for respondent, the attorneys for Horne Motors, Inc., and the attorneys for Universal Credit Company, was passed by Honorable G. Duncan Bellinger, Circuit Judge, while holding Court at Aiken (in the same Judicial Circuit as Bamberg County) dismissing said two original defendants as parties to the action.Appellant had no notice that such an order was going to be applied for, and had no knowledge of the order until after it was passed.

On April 16, 1938, appellant gave notice of a motion to be heard before Judge Bellinger, to revoke and set aside his order of April 5, 1938; and also for an order striking out the amended complaint.No grounds are stated in the notice of the motions.These motions were heard before Judge Bellinger on April 25, 1938, at the April term of the Court of Common Pleas for Bamberg County, and refused.

On May 28, 1938, appellant, "specially reserving all rights under each of the motions filed and its objections and exceptions to the order" of Judge Bellinger of date April 25, 1938, served its answer to the amended complaint.At the same time (May 28, 1938)appellant served notice of a motion to bring in Horne Motors, Inc., and Universal Credit Company, as necessary and proper parties, and this notice was served on said proposed parties-defendants.

This motion was heard before Honorable H. F. Rice, Presiding Judge at the July (1938) term of the Court of Common Pleas for Bamberg County, and thereafter in an order dated August 5, 1938, refused.

The appeal in this case is from the orders of Judge Bellinger and Judge Rice, dated April 25, 1938, and August 5, 1938, respectively.

The appellant states the "Questions Involved" as follows:

"1.May an order affecting the rights of a party to the action be granted without notice to him?

"2.May a complaint be amended as of course, without notice to defendant, under section 493 of the Code, by eliminating and dismissing from the action other defendants, or may that be done only by the Court, under section 494 of the Code, after notice to all parties and a hearing thereon?

"3.Did not plaintiff waive any possible right to amend as of course, by applying to the Court for an order dismissing certain defendants ?

"4.Are not Universal Credit Company and Horne Motors, Inc., necessary or proper parties to the action?"

Under the facts of this caseQuestionNo. 1 is not before the Court only insofar as it is encompassed by QuestionNo. 2.

QuestionNo. 2 relates entirely to the order of Judge Bellinger.After setting out a brief history of the litigation, the order continues:

"*** The complaint was amended under the provisions of section 493 of the Code, which section permits the plaintiff to amend his complaint within twenty days after it is served as a matter of course, without prejudice to the proceedings already had and without applying to the Court.

"It appears that several days after the amended complaint was served, the attorneys for the Universal Credit Company and Horne Motors, Inc., prepared a proposed order formally dismissing the said defendants.This order was consented to by the attorneys for the plaintiff and was signed by me while presiding over the Court at Aiken, and I mailed the same to C. W. McCants, Esq., Columbia, S.C., on April 4th, or April 5th.The order is not dated, but from affidavits filed in the record I find that the order was not prepared until some days after the amended complaint had been served, and was mailed at Orangeburg, S.C., on April 4th., addressed to me at Aiken, hence, the order could not have been signed before April 4th., and was most probably signed on April 5th.

"The attorney for the plaintiff(defendant?) relies upon the case of Dunbar v. Fant,174 S.C. 49, 176 S.E. 866, which held that the plaintiff in that case waived his right to amend, as of course, under section 493 by applying to the Court for leave to amend.In my opinion that case is not in point for the reason that in the case at barthe plaintiff did not apply to the Court for leave to amend, but amended his complaint as a matter of course under section 493, a week before the order in question was signed.The order signed by me on or about April 5th.,...