Marion v. City Council of Charleston

• Decision Date: 07 November 1905
• Citation: 52 S.E. 418,72 S.C. 576
• Parties: MARION v. CITY COUNCIL OF CHARLESTON.
• Court: South Carolina Supreme Court

52 S.E. 418

72 S.C. 576

MARION v. CITY COUNCIL OF CHARLESTON.

Supreme Court of South Carolina

November 7, 1905

Appeal from Common Pleas Circuit Court of Charleston County Townsend, Judge.

Action by Sophia S. Marion against the city council of Charleston. From an order refusing to substitute a party, and to submit an issue to the jury, plaintiff appeals. Affirmed.

See 47 S.E. 140.

Julian Fishburne, for appellant. Geo. H. Moffett, for respondent.

JONES J.

This appeal is from an order of Judge Townsend, dated December 22 1904, refusing to grant a motion to substitute the name of Sophia Helen Fishburne, as executrix under the will of Sophia F. S. Marion, as plaintiff in the above-stated case, and to assign a date for submitting the question as to damages to a jury. So far as the case shows, the only paper served upon the defendant was the notice signed by "Julian Fishburne, Agent," to the effect that he would on the day specified make the motion for the purpose above named. So far as appears in the "case," there was nothing before the court to show that Sophia F. S. Marion was dead that she left a will which had been probated, and that Sophia Helen Fishburne had qualified as executrix.

1. Under these circumstances, it was proper to refuse the motion. A proper practice in such case is to make an ex parte application, based upon a proper showing by affidavit for a rule to show cause why the action should not be continued by or against the party sought to be substituted, as suggested in Dunham v. Carson, 42 S.C. 391, 20 S.E. 197, and approved in Pickett v. Fidelity Co., 60 S.C. 484, 38 S.E. 160, 629. However, under any procedure having substantially the same effect, filling the requirements of notice, proof of necessary facts, and opportunity to contest such alleged facts, would be sufficient, as in DeLoach v. Sarratt, 55 S.C. 275, 33 S.E. 2, 35 S.E. 441; Shull v. Bradford, 58 S.C. 580, 37 S.E. 30. The appellant not having made any proper showing before the circuit court, it was not error to deny his motion to substitute.

2. With reference to the second branch of the motion, which was to fix a day for the submission of an issue to a jury. The action was brought to cancel a deed on the ground of fraud, and recover damages in consequence of the alleged fraud by the city council of Charleston. Assuming that the action was being properly continued in the name of Sophia F. S. Marion, the motion was properly denied for noncompliance with rule 28 of the circuit court, providing the procedure when it was desired to submit to a jury an issue of fact arising in an equity case.

3. The appellant served notice of a motion requesting that this court grant (1) an order to substitute as plaintiff Sophia Helen Marion Fishburne, as executrix of Sophia F. S. Marion (2) an order for judgment by default, and presented such motion on the call of ...