Lowry v. Atlantic Coast Line R. Co.
| Decision Date | 13 July 1912 |
| Parties | LOWRY v. ATLANTIC COAST LINE R. CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; Ernest Gary, Judge.
Action by Mrs. E. A. Lowry against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
See also, 91 S.C. 350, 74 S.E. 753.
L. D Jennings, of Sumter, for appellant. Willcox & Willcox, of Florence, and Mark Reynolds, of Sumter, for respondent.
This is an action against the defendant company for loss and damage to shipment of household furniture which the plaintiff had shipped from Henrietta, Tex., to Sumter, S.C. Upon the first trial of the cause, the presiding judge directed a verdict in favor of the defendant, which upon appeal was reversed. See 88 S.C. 310, 70 S.E. 806. Some time thereafter and before the summer term of court for Sumter county in 1911, the defendant gave notice that a motion would be made on July 3d for an order allowing an amendment to the original answer. This motion was not brought to a hearing by the defendant during that term of court. On November 2, 1911, the defendant served upon plaintiff's counsel another notice that a motion would be made on November 6th before the presiding judge, Hon. Robert E. Copes, for an order to amend the answer. With this notice an affidavit of one of defendant's counsel was served stating that he had only recently been able to secure complete information upon the facts upon which he was seeking to amend the answer. Judge Copes refused to allow the amendment, holding that the notice of November 2d of the motion to be heard November 6th was not sufficient as to time. This cause was then tried before a jury and a verdict rendered for the plaintiff. A motion was made for a new trial which was overruled, and defendant appeals on 15 grounds.
At the hearing of the cause in this court, exceptions 4, 5, 7, and 10 were withdrawn by the appellant. The first, second, and third exceptions allege error on the part of his honor, Judge Copes, in refusing to pass upon the merits of the motion for leave to amend the answer. The original notice of motion was served June 28, 1911, fixing the hearing of the motion on July 3, 1911, or "as soon thereafter as counsel could be heard." The motion was not heard at the July term of court, and afterwards on November 2, 1911, an additional notice was served notifying plaintiff's counsel that defendant would renew the notice of motion and the motion papers "heretofore served on June 28, 1911, on November 6, 1911," or "as soon thereafter as counsel could be heard." Judge Copes held that the notice served in June had lost all legal vitality, and that the notice served in November was ineffectual because it did not allow sufficient time. We think his honor was in error in so holding. The failure to dispose of the motion at the July term of court did not destroy the vitality of the notice. It provided for it to be heard at that term or "as soon thereafter as counsel could be heard." The object of the notice was to prepare the opposing counsel. It would be an extremely technical rule which would, as a matter of law, deprive a litigant of the right to have a motion of this nature heard under the circumstances as developed here. His honor was in error in holding that he could not hear the motion and that he had no discretion in the matter. He should have heard the motion and granted or refused it as he saw fit in his discretion.
It is the better and safer practice for a circuit judge, when a motion is made before him when he thinks he has no power to entertain it, to intimate what he would do if he were clothed with the power, whether he would grant or refuse it, and then upon the appeal this court could determine whether he had erroneously exercised his discretion or not. In the case at bar, Judge Copes held he had no power to hear the motion. It would have been the better practice for him to have decided if he had the power would he have allowed the defendant to file the amended answer or not.
Under section 195 of the Code of Civil Procedure, the court, upon a proper showing and upon such terms as the court thought just, could have allowed the defendant to amend its answer without notice whatsoever.
While Judge Copes was in error in not entertaining the motion, we do not think the defendant was prejudiced, as the proposed answer upon the showing made should not have been allowed. This case had been tried in the circuit court, verdict rendered for the plaintiff, appeal taken and a new trial granted, and case remanded on April 4, 1911, for another trial. During all this time no effort was made by the defendant to amend its answer or to secure complete information. The action was originally brought on July 22 1908, and defendant's counsel's affidavit, upon which defendant relies to procure the order to amend answer, is dated November 2, 1911. A careful reading of that affidavit will not show such diligence on the part of defendant's counsel in procuring the information upon which amended answer is based as to allow them now to file the amended answer. It does not show excusable mistake or...
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Sauls-Baker Co. v. Atlantic Coast Line R. Co.
... ... interposition at the second trial than it would have been if ... [96 S.E. 119.] ... it had been set up at the first trial, at which defendant ... would have had the right to set it up ... This ... case differs materially from that of Lowry v. R ... Co., 92 S.C. 33, 75 S.E. 278, which is relied upon by ... appellant, as will be seen by reference to the facts and ... circumstances stated in the opinion. There the motion to ... amend was refused by the circuit court on the ground that ... sufficient notice thereof had not been ... ...