McCaslan v. Latimer
| Decision Date | 12 April 1882 |
| Parties | MCCASLAN v. LATIMER. |
| Court | South Carolina Supreme Court |
Allegations of facts occurring since the commencement of the action and of facts not then known to the plaintiff can be brought before the court by supplemental complaint only; and it is error of law to permit them to be incorporated as amendments into the original complaint.
Before FRASER, J., Abbeville, November, 1881.
This action was commenced and the complaint filed June 23, 1881 by James McCaslan and several others, residents and taxpayers of certain townships of Abbeville county, suing in behalf of themselves and of all others who have a common interest against James M. Latimer and others, claiming to be president and directors of the Savannah Valley Railroad Company, and against J. Wardlaw Perrin as treasurer of Abbeville county.
The complaint alleged the incorporation of the company (16 Stat. 435), and the subscription of certain townships of Abbeville county, payable in three instalments of which one had been paid and the second was about to be enforced by the said county treasurer; that some of the plaintiffs had voted for this subscription; that the company had not been properly organized and the subscribing townships not properly represented; that the annual meeting prescribed by the charter had not been called, and the defendants now exercising the functions of officers have continued themselves in office; that an amended charter (17 Stat. 418), changing the location of the road and otherwise affecting its interests, had been obtained fro the legislature by defendants, but had never been assented to or adopted at any meeting of the stockholders, but defendants were now proceeding to act and expend money under the terms of this amendment. The complaint alleged other irregularities and illegalities. The judgment prayed was an injunction restraining the defendants from acting as officers, or expending the money received from the subscribing townships, and the county treasurer from collecting further instalments, and that the townships be discharged from their payment.
On June 24, 1881, the plaintiffs procured an order from Judge Hudson requiring the defendants to show cause at Greenville, on July 12, why an injunction should not be granted. Defendants on that day served their answer (which does not appear in the brief) and " the cause was heard by Judge Hudson on the rule." He filed his decree July 22, in which he fully discussed the merits of the case, and thought the plaintiffs had failed to make out any grounds for an injunction, and held the return sufficient, and denied the motion for preliminary injunction with costs.
In October plaintiffs gave notice that, at the next ensuing term of court in Abbeville, they would move for leave to amend the complaint in several particulars. which were substantially as follows:
1. That the subscription of the townships had not been made and certified as required by the charter.
2. That plaintiffs paid their first instalment under a mistake of fact, supposing that the subscription had been duly made.
3. That the amendment to the charter had been requested by a convention of so-called stockholders in November, 1879.
4. That at a convention of so-called stockholders held June 30, 1881, James M. Latimer had informed them that the amendment to the charter was not accomplished until the session of the general assembly in 1880.
5. That said convention adopted a resolution declaring it inexpedient to elect officers, and requesting those in office to hold over until the next annual meeting.
6. That no election was then held, nor since, and that no time has been appointed for such an election.
Judge Fraser heard the motion and granted it, on payment by the plaintiffs of $15 costs. Defendants appealed on the single ground stated in the opinion.
Mr. B. F. Whitner , for appellants.
Mr. A. Burt , contra, contended that the order was in the discretion of the judge and therefore not appealable, and cited Code , §§ 11, 196; 4 Wait Prac. 252, 256, 262; 12 Abb. 414; 21 How. Pr. 296; 16 N. Y. 242; 50 N. Y. 689; 52 N. Y. 248.
This action was brought to restrain the defendants appellants, president and directors of the Savannah Valley Railroad Company, from doing certain acts of official character, and also to restrain the treasurer of the county of Abbeville from collecting and paying over the uncollected portion of the tax subscribed to the company.
After filing the complaint and before answer, the plaintiffs respondents made application at chambers before Judge Hudson for a preliminary injunction. Upon this application Judge Hudson granted a rule to show cause before him at Greenville on July 12, 1881. On that day the defendants answered, and the case was heard upon the rule. Judge Hudson declined to grant the restraining order applied for pending the litigation, and leaving the matter to the court to be acted on at term time, dismissed the motion with costs.
At the next term of the Court of Common Pleas for Abbeville county, plaintiffs, upon notice, moved for leave to amend their complaint in various particulars. This motion was granted by Judge Fraser, the presiding judge. From this order the defendants have appealed, upon the single ground that the additional allegations thus incorporated by amendment were not the subject of amendment, but were the subject of supplemental pleading, and could be brought before the court by a supplemental complaint only.
The only question therefore before this court in the appeal is Did the judge err in permitting the additional allegations...
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