Monteith v. Harby
| Decision Date | 05 June 1939 |
| Docket Number | 14890. |
| Citation | 3 S.E.2d 250,190 S.C. 453 |
| Parties | MONTEITH v. HARBY et al. McKINLEY v. SAME. |
| Court | South Carolina Supreme Court |
L D. Jennings and M. W. Seabrook, both of Sumter, for appellants.
M M. Weinberg, Epps & Epps, and Lee & Moise, all of Sumter, for respondents.
The opinion of this Court on the former appeal will be found reported in 187 S.C. 168, 197 S.E. 215. It was held on that appeal that no facts were alleged in the complaints to show that any long or complicated accounting would be required and for that reason the Court did not err in transferring the cases from the equity calendar to the law calendar.
After the decision in the former appeal, a motion was made by each of the appellants, upon due notice, to amend her complaint, and copies of the proposed amended complaints were attached to the notices of the motions. At the same time appellants moved to transfer the cases back to the equity calendar upon the ground that the complaints, as amended state an equitable action for an accounting. Appellants are appealing from an order refusing these motions.
An allowance of amendments to pleadings under the statute (Sec. 494) in furtherance of justice, is addressed to the sound discretion of the Circuit Judge, and his action is not subject to review by this Court, unless there has been an abuse of discretion. Dunbar v. Fant et al., 174 S.C. 49, 176 S.E. 866; Parker v. Mayes, 85 S.C. 419, 67 S.E. 559, 137 Am.St.Rep. 912. But in this case the Judge did not exercise his discretion. He held as a matter of law that the proposed amended complaints do not change the causes of action.
The construction of a pleading involves a matter of law. Thrower v. Kistler, 174 S.C. 479, 178 S.E. 126. Therefore if error was committed in holding that the amended complaints do not change the actions from law to equity, the judgment should be reversed.
Appellants contend that new allegations of facts not appearing in the original complaints, but now embraced in Paragraph 7 of the complaint, as amended, indisputably show that the causes are in equity and will necessarily involve a long and complicated account.
But comparing the allegations contained in this paragraph with those of the original complaints, we find that with some unimportant changes in phraseology, they are repetitious. Allegations substantially identical are found in paragraph 6 of the original complaints, and the same delict is charged.
The rule was laid down in McCabe & Co. v. Colleton Mercantile & Manufacturing Company, 106 S.C. 25, 90 S.E. 161, 162 that to deprive a party of the right of jury trial, the account involved must not only be long, but so complicated that it would be impracticable for an ordinary jury to comprehend and decide the issues correctly....
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Stoneledge at Lake Keowee Owners' Ass'n, Inc. v. Builders FirstSource-Se. Grp.
...for equitable indemnity—requires us to construe its cross-complaint, and thus presents a question of law. See Monteith v. Harby, 190 S.C. 453, 455, 3 S.E.2d 250, 250 (1939) (“The construction of a pleading involves a matter of law.”). We therefore review the circuit court's ruling de novo. ......
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Stoneledge At Lake Keowee Owners' Ass'n, Inc. v. Builders Firstsource-Southeast Grp., Imk Dev. Co.
...for equitable indemnity—requires us to construe its cross-complaint, and thus presents a question of law. See Monteith v. Harby, 190 S.C. 453, 455, 3 S.E.2d 250, 250 (1939) ("The construction of a pleading involves a matter of law."). We therefore review the circuit court's ruling de novo. ......
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Chisolm v. Pryor
...that there is some remedy at law, but that remedy must be as practical, efficient, and prompt as the remedy in equity. Monteith v. Harby, 190 S.C. 453, 3 S.E.2d 250; Am.Jur. (Eq.), Sections 112, 114, and 121. The assumption of jurisdiction by the court of equity is largely dependent upon th......
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