Seegers v. Mccreery

• Decision Date: 25 April 1894
• Citation: 19 S.E. 696,41 S.C. 548
• Parties: SEEGERS v. McCREERY et al.
• Court: South Carolina Supreme Court

19 S.E. 696

41 S.C. 548

SEEGERS

v.McCREERY et al.

Supreme Court of South Carolina.

April 25, 1894.

Appeal—Dismissal—Amendment of Pleading— New Trial.

1. An appeal will not be dismissed on the ground that appellant's exceptions are frivolous.

2. A motion to amend an answer so as to set up the statute of limitations, made during the trial, is addressed to the discretion of the trial court, and is not subject to review, unless the discretion is abused, or unless its exercise is based on an erroneous proposition of law.

3. The decision of a motion for a new trial, for newly-discovered evidence, will not be reviewed unless there is an abuse of discretion, or it is based on an erroneous conclusion of law.

Appeal from common pleas circuit court of Richland county.

Action by John C. Seegers against T. A McCreery & Co. From a judgment for plaintiff, defendants appeal. Dismissed.

William H. Lyles, for appellants.

Leroy F. Youmans, for respondent.

McIVER, C. J. This is a motion on the part of the plaintiff (respondent) to dismiss the appeal of defendants on the grounds contained in his notice, as follows: "The State of South Carolina. In the Supreme Court. Appeal from Richland County, Fifth Circuit. John C. Seegers, Plaintiff (Respondent), against Thomas A. McCreery and Berry B. McCreery, Partners in Trade, Doing Business under the Firm Name of T. A. McCreery and Company, Defendants (Appellants). Mess. Lyles & Miller, appellants' attorneys, will please take notice that the re-pondent will move the supreme court on Tuesday, April 17, 1894, at 11 o'clock a. m or as soon thereafter as counsel can be heard, on the record herein, to dismiss the appeal herein, to wit: First So much thereof as the first exception relates to, on the grounds (1) that the refusal of the circuit judge to allow defendants to amend their answer by setting up the plea of the statute of limitations, excepted to, is not appealable matter; (2) that there is no assignment of any error of law committed by the circuit judge in said refusal; (3) that said exception is frivolous. Second. So much thereof as the second exception relates to, on the grounds (1) that the case does not show the occurrence of the fact therein alleged, to wit, that the circuit judge excluded from the consideration of the jury the time of the alleged conversion, and respondent does not admit, but denies, the same; (2) that the defendants did not call the attention of the circuit judge to such alleged exclusion or omission to charge, by request to charge, or otherwise; (3) that said exception is frivolous. Third. To so much thereof as the third exception relates to, on the grounds (1) that the appellants have not given notice of intention to appeal from, and have not appealed from, the order of the circuit judge refusing the motion for a new trial upon after-discovered evidence, —the only mode by which said exception could be brought to this court; (2) that said refusal is not appealable matter; (3) that there is no assignment of any error of law committed by the circuit judge in said refusal; (4) that said exception is frivolous. Bachman & Youmans, Respondent's Attorneys."

As to the ground that appellants' exceptions are frivolous, after considerable investigation, we have been unable to find any authority to dismiss the appeal on that ground. Several cases have been decided in this state wherein the point raised was as to the pleadings being frivolous, but they did not involve the appeal. On the other hand, in the case of ...