Mcsween v. Windham

Citation57 S.E. 847,77 S.C. 223
PartiesMcSWEEN v. WINDHAM et al.
Decision Date17 June 1907
CourtUnited States State Supreme Court of South Carolina

57 S.E. 847
77 S.C. 223

WINDHAM et al.

Supreme Court of South Carolina.

June 17, 1907.

Pleading—Time to Answer—Extension.

Where plaintiff's attorney agreed to extend the time to answer, if the extension did not carry the case over the term of court, and if he were advised of every defense to be set up not. later than February 15, 1906, it was error to refuse to permit defendant to answer March 1st, where the term of court convened March 26th.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 175-178.]

Appeal from Common Pleas Circuit Court of Darlington County; Gage, Judge.

Action by John McSween against Annie Windham and others. Motion for leave to file answer out of time. From an order denying the same, defendants appeal. Beversed.

Geo. W. Brown and Miller & Lawson, for appellants.

Robert McFarland, for respondent.

JONES, J. This is an appeal from an order of his honor, Judge Gage, refusing defendants' motion, made upon notice and affidavits pro and con, for leave to answer the complaint in this action under the following circumstances: The original summons and complaint were served about the 1st of November, 1905. Attorney Geo. W. Brown, representing some of the defendants, asked plaintiff's attorney, Robert McFarland, for extension of time to answer, which was granted. Before the 20 days elapsed from the service of summons and complaint, plaintiff's attorney informed defendants' attorney, Brown, that he need not answer the complaint, that he wished to serve an amended complaint, which was duly served December 16, 1905. Again extension of time to answer was granted, on the condition only that either the answer be served or nature of defenses stated before the time for meeting of the General Assembly in January, 1906. Thereafter Attorney Brown asked that the time be extended until the adjournment of the General Assembly, to which the attorney for plaintiff did not agree, but who later, at the request of J. Monroe Spears, Esq., who at that time represented some of the defendants, signed the following statement in writing, which was indorsed on the copy of the complaint in possession of Brown: "I hereby agree to extend time to answer in within case, provided it does not carry me over this term of court, and that I be advised of each and every defense to be interposed not later than February 15, 1906. Robert McFarland, Plaintiff's Attorney." Attorney Spears, having some difference with his clients in regard to his fee, soon after...

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