GARY
A. J.
The
record contains the following statement of facts: "This
is an action by the unpaid creditors of M. M. Humphries,
deceased, against the sureties on the administration bond of
R. T. Gee as administrator of M. M. Humphries, who qualified
on September 15, 1881. The bond is in the form required by
the statute. R. T. Gee, as such administrator, accounted in a
creditors' bill in the court of common pleas, entitled,
'R. T. Gee, as Administrator of M. M. Humphries,
Plaintiff, against Mary G. Humphries et al., Defendants.'
Upon said accounting R. T. Gee was decreed to be indebted to
his intestate's estate in the sum of $5,680.90 on the
20th day of September, 1897, together with $155.95 costs; and
the decree of the court provided that H. C. Lawson and other
unpaid creditors might enter up judgment therefor, which was
done. The amount decreed to be due not having been paid, this
action was brought on the bond of R. T. Gee as such
administrator, which was joint and several, and dated and
executed September 15, 1881. The case came on to be heard at
the June term of the court (1899) for Union county, before
his honor, Judge Gary, and a jury. Upon the reading of the
answer of William Munro, the only defendant who appeared or
answered, plaintiffs interposed several oral demurrers to the
several matters set up as defenses in paragraphs 1 (except
the denial), 2, 3, and 4 of the answer, upon the ground that
they did not state facts sufficient to constitute a defense.
His honor sustained plaintiffs' several demurrers, and
struck out the paragraphs and part of paragraph demurred to
from the answer, and, against the objection and exception of
plaintiffs, allowed defendant to amend the
answer, as will appear from the order. Upon the reading of
the amended answer, plaintiffs again interposed several oral
demurrers to the several matters alleged as defenses in the
several paragraphs thereof numbered 2, 3, 4, and 5, upon the
grounds that the facts therein stated did not constitute a
defense, and also moved to strike out paragraph 5, as
unauthorized. His honor overruled the demurrers, and refused
the motion to strike out paragraph 5. Plaintiffs gave notice
of intention to appeal. The case was withdrawn from the jury,
and this appeal questions the correctness of the action of
his honor in allowing defendant to amend his answer by
properly pleading the laches of plaintiffs, and in overruling
plaintiffs' demurrers to the amended answer, and in
refusing plaintiffs' motion to strike out paragraph
5." The circuit judge allowed the defendant William
Munro to amend his answer, among other things, "by
properly pleading the laches of the plaintiffs." The
circuit judge granted the following order overruling the
demurrer, and refusing the motion hereinbefore mentioned:
"The defendant William Munro having served his amended
answer, and upon the reading thereof plaintiffs having
interposed several oral demurrers to each of the five
paragraphs of said amended answer upon the ground that the
facts therein stated were not sufficient to constitute a
defense, and moved to strike out paragraph 5, as new matter
not authorized by the order of amendment, upon hearing
argument ordered that the demurrers and motion be, and are,
overruled." The plaintiffs appealed upon exceptions, the
first of which assigns error on the part of the presiding
judge as follows: "(1) In allowing defendant to amend
his answer by properly pleading the laches of plaintiffs,
when laches could under no circumstances constitute a defense
to this action." It rests within the discretion of a
circuit judge whether he will allow the amendment of a
pleading, and his action in allowing such amendment is not
the subject of appeal, unless there has been an
abuse of his discretion, which we fail to find in this case.
The
second, third, fourth, fifth, sixth, and seventh exceptions
are as follows: "(2) In overruling plaintiffs'
demurrers to the first matters and item alleged in paragraph
2 of...
