Marion County Lumber Corp. v. Whipple

• Decision Date: 19 December 1921
• Docket Number: 10806.
• Citation: 110 S.E. 70,118 S.C. 90
• Parties: MARION COUNTY LUMBER CORPORATION v. WHIPPLE ET AL.
• Court: South Carolina Supreme Court

110 S.E. 70

118 S.C. 90

MARION COUNTY LUMBER CORPORATION v. WHIPPLE ET AL.

No. 10806.

Supreme Court of South Carolina

December 19, 1921

Appeal from Common Pleas Circuit Court of Marlboro County; Edward McIver, Judge.

Action by the Marion County Lumber Corporation against C. S Whipple. J. E. Rogers, trustee, was allowed to come in as a defendant, and plaintiff appeals. Appeal dismissed.

M. C Woods, of Marion, for appellant.

T. I Rogers and W. M. Stevenson, both of Bennettsville, for respondents.

GARY C.J.

The plaintiff herein brought an action for damages against the defendant C. S. Whipple, alleging that he had cut and appropriated certain timber belonging to it.

The defendant C. S. Whipple served the following notice on J. E Rogers, trustee:

"You will please take notice that an action has been brought against me by the Marion County Lumber Corporation in the court of common pleas for Marlboro county for damages alleged to have been caused it by my cutting and removing certain timber which said corporation claims to have been its property. This timber was conveyed to me by you by warranty deed, and the purpose of this notice is to call upon you to appear and defend this action and to comply with your covenant of warranty and to hold me harmless in said action, and I will rely upon all my legal rights under your covenant of warranty. A copy of this complaint is herewith handed you, and you will take such action as is proper under the circumstances."

His honor the circuit judge made the following order:

"The above was a motion by J. E. Rogers, trustee, to be made a party defendant to this action and be allowed to plead therein, and was made pursuant to a notice vouching him in by C. S. Whipple, the defendant, to whom he had sold the timber, for the cutting of which the suit was brought. The motion was resisted by the plaintiff, and the hearing was on the papers specified in the notice; it being also admitted on the part of the movant that he had sold and warranted to defendant the very timber cut. The question of the title of this timber is clearly involved, and it appears to me that the movant is vitally interested in the decision and should be allowed to be heard in this case.

It is therefore ordered and decreed that J. E. Rogers, trustee, be, and he is hereby, made a party defendant hereto, and be allowed to plead in said case, and that he have 20 days from the date hereof to serve such pleading, and that plaintiff have 20 days from that date to plead thereto."

The plaintiff appealed, and the sole question is whether there was error on the part of his honor the circuit judge in allowing J. E. Rogers to be made a party defendant.

Section 167 of the Code provides that--

"Any person may be made a defendant who has or claims any interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein."

Section 171 of the Code is as follows:

"The court may determine any controversy

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