Mall v. Woodward

• Decision Date: 11 April 1889
• Citation: 30 S.C. 564,9 S.E. 684
• Parties: mall v. Woodward.
• Court: South Carolina Supreme Court

9 S.E. 684

(30 S.C. 564)

mall

v.Woodward.

Supreme Court of South Carolina.

April 11, 1889.

Pleading—Amendment—Evidence.

1. In an action against a co-surety for contribution, where the only defense interposed was presumption of payment of the original debt as to defendant, the execution of the note by defendant, and the fact of his suretyship, do not become res adjitdicata, but may be set up in an amended answer on a second trial of the action.

2. An amendment to the pleadings, offered by defendant on the second trial, introducing the questions as to the execution of the note by defendant, and the fact of co-suretyship, which questions are decided on the trial adversely to plaintiff, will not be held on appeal to be frivolous or evasive, or the allegations on which they rest to be manifestly untrue.

3. Defendant is not estopped from setting up the new defense on the second trial by the fact that he pleaded a different defense in the former trial.

4. Code S. C. § 194, provides that the court may, in furtherance of justice, amend any pleading, etc., by inserting other allegations, etc., "or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved." Held, that the limitation as to changing the claim or defense applies only to amendments during or after trial, and does not prohibit that an amendment changing the defense be allowed after reversal of a first trial, and before the second trial.

5. Whether a proposed amendment of pleadings is in furtherance of justice is a question for the trial court, on a review of all the circumstances; and the consideration that the party offering the amendment is put to a disadvantage by the death of witnesses is a proper matter to be considered, but is not conclusive.

6. Under Code S. C, which does not permit a denial of knowledge or information sufficient to form a belief as to the existence of a fact the truth of which can be readily ascertained, such pleading is proper as to the execution of a note which has been lost for about 20 years, and which the pleader has not had an opportunity to examine or had called to his attention for more than 20 years.

7. On the second trial the original answer of defendant, which admitted the execution of the note and the co-suretyship, but which had been struck from the record* when the amended answer was filed, was competent, but not conclusive, evidence of the facts therein admitted.

Appeal from common pleas circuit court of Fairfield county; Witherspoon, Judge.

Ragsdale & Ragsdale, for appellant. Lyles de Haynsworth and O'Bear & Rion, for respondent.

McIver, J. The plaintiff brings this action, as assignee of his father Daniel Hall, Sr., against the defendant Woodward, to recover one-half of the amount paid by him in satisfaction of a judgment which had been recovered against Daniel Hall, Sr., on a note, upon which it is alleged he and Woodward were joint sureties, in his original answer the defendant raised no issue either as to the execution of said note by him, or as to the fact that he and Daniel Hall, Sr., were cosureties on said note, but rested his defense upon other grounds, one of which was that the note was presumed paid as to him by lapse of time before the judgment was paid by the plaintiff herein. At the first trial the circuit judge, without considering any of the other defenses, sustained the plea of payment presumed from lapse of time, and upon that ground alone rendered judgment dismissing the complaint. From that judgment the plaintiff appealed, and this court reversed the judgment, and remanded the case for a new trial. See the case as reported. 26 S. C. 557, 2 S. E. Rep. 401. As soon as the remittitur was sent down, and before the next succeeding term of the court of common pleas, the defendant gave notice that he would move to amend his answer by substituting, in place of the answer originally filed, another answer, a copy of which, together with certain affidavits set out in the case, was served with the notice of the motion. Upon these papers, as well as certain affidavits submitted by plaintiff, likewise set out in the case, the motion was heard and granted by Judge Wallace. From the order granting this motion the plaintiff gave due notice of appeal, but by an arrangement between the parties the hearing of this appeal was suspended until the final disposition of the case on the merits. In pursuance of this arrangement the case was heard on the merits, by Judge Witherspoon, at the next term of the court, upon the pleadings as amended. The amended answer purports to put in issue both the fact of the execution of the note by Woodward and the fact of his co-suretyship with Daniel Hall, Sr., by denying any knowledge or information sufficient to form a belief as to either of these facts. Judge Witherspoon, finding as matter of fact that the plaintiff had failed to show by a preponderance of evidence either the execution of the note or that be and Daniel Hall, Sr., were co-sureties thereon, rendered judgment that the complaint be dismissed, with certain provisions as to the costs which need not be stated, as there is no controversy here in reference to that portion of the judgment. From this judgment plaintiff also appeals upon the several grounds set out in the record.

We will first consider the appeal from Judge Wallace's order granting leave to substitute the amended answer for the one originally filed. The first exception to this order is that the issues sought to be raised by the amended answer were res adjudicata by the former decision in this case. These issues were as to the execution of the note by Woodward, and the fact of his co-suretyship with Daniel Hall, Sr. As it is quite clear that no such issues were presented by the pleadings at the former trial, it is difficult to conceive how they can be regarded as res adjudicata. Neither the circuit nor supreme court were called upon to determine anything whatever in regard to these facts, and accordingly, so far from undertaking to do so, both (he circuit judge and this court expressly said that the only question to be considered was whether the plea of payment, resting on the presumption arising from lapse of time, could be sustained, and it is quite manifestthat that was the only issue considered or determined.

The second exception to the order is that the circuit judge erred in holding that the proposed amendment was in furtherance of justice. Ordinarily, motions to amend are addressed to the discretion of the circuit court, and whether a proposed amendment is in furtherance of justice is a matter to be determined by that court upon a review of all the circumstances. The consideration so earnestly urged, that the plaintiff, by the death of witnesses, was put at a disadvantage, was a very proper matter to be considered by the circuit judge, and no doubt it was allowed by his honor all due weight; but it was not conclusive or controlling.

The third exception is that the motion to amend was improperly granted, because by the proposed amendment the defendant is allowed to change his defense. Section 194 of the Code reads as follows: "The court may, before or after judgment, in furtherance of justice, and on such terras as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other...