Shull v. Caughman

• Decision Date: 08 February 1899
• Citation: 32 S.E. 301,54 S.C. 203
• Parties: SHULL. v. CAUGHMAN.
• Court: South Carolina Supreme Court

32 S.E. 301

(54 S.C. 203)

SHULL.

v.CAUGHMAN.

Supreme Court of South Carolina.

Feb. 8, 1899.

Parties—Defect—Dismissal and Nonsuit — Er-ror—Amendment.

1. Under Code, § 165, authorizing defendant to demur to a complaint where a defect of parties appears on the face; and section 169, providing that failure to object to a complaint by demurrer or answer shall be deemed a waiver, — a defect of parties cannot be first urged on a motion for nonsuit.

2. Grounds of exceptions to a refusal to nonsuit will not be considered which were not presented or passed on with the motion for nonsuit.

3. A motion to dismiss will not lie for defect

of parties.

4. Under Code, § 142, providing that no action shall abate by death of a party if the cause of action survive, and that in case of death the court may allow the action to be continued by or against the party's representative, the court may amend its order of substitution, during the term it is entered, by substituting heirs of the deceased party in place of his executor.

Appeal from common pleas circuit court of Lexington county; Ernest Gary, Judge. Action by Sue A. Shull against Frances T Caughman. Upon death of the latter, J. A. Muller was substituted as administrator c. t. a. of her estate. There was an order substituting the heirs of defendant for the administrator, and he appeals. Affirmed.

The following is the order of the lower court, with the exceptions thereto:

"This cause came on to be heard before me at the September term, 1898, of the court of common pleas for Lexington county. It involved the title to a lot of land in the town of Lexington, and the trial before me was the second one brought for the recovery thereof; the first having resulted in favor of the defendant, Mrs. Frances T. Caughman. While the second action was pending, and after issue joined, Mrs. Frances T. Caughman died; whereupon, and within 12 months thereafter, an order was duly obtained, substituting for her, as defendant in the cause, J. A. Muller, as administrator cum testa-mento annexo of the estate of the said Frances T. Caughman. When plaintiff closed his case in chief, Mr. Crawford, for the defendant, moved for a nonsuit, on the ground that the proof was not sufficient to sustain the action. This motion, after argument, was refused, when he made a further motion to dismiss the complaint. This motion was also refused. Then a demurrer was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action. I sustained the demurrer, with leave granted to the plaintiff to amend the order of substitution, making the devisee under the last will and testament of Mrs. Frances T. Caughman a party defendant, provided said amendment be served upon defendant's counsel within 20 days from the rising of the court."

"The defendant herein appeals to the supreme court from the order, dated 5th October, 1898, of his honor, Judge Ernest Gary: (1) For that his honor should have granted the motion for a nonsuit interposed by the defendant, because the proof adduced by plaintiff was not sufficient to sustain the ac tion, said proof being totally insufficient to establish a cause of action, (la) For that the nonsuit should have been granted, because the proof adduced by plaintiff was totally insufficient to establish her cause of action, in that there was no evidence whatever that a trespass had been committed on the property at issue. (2) For that his honor should have granted the motion to dismiss the complaint, because the action was brought against a wrong and sole defendant, and, therefore, had to fail, as there was no proper or necessary party defendant before the court. (3) For that said error appeared at the trial after plaintiff's proof was in, and that, necessarily, it gave rise to either an adverse verdict or a nonsuit, and such error cannot be amended by substituting a right defendant, who is in no manner before the court, for a wrong defendant, pntirely un-connected with any other party to the cause. (4) For that his honor erred in allowing an amendment to the order of substitution, including therein a new and independent party defendant, in a cause of action such as that at bar, when that decision embodied a demurrer, granted after the plaintiff had rested her case, on the ground that there were not facts stated sufficient to constitute a cause of action, which decision was but another form of sustaining the nonsuit asked for, to wit, that the proof was not sufficient to sustain the cause of action."

Andrew Crawford, for appellant.

Meetze & Muller, for respondent.

GARY, A. J. The appeal herein is from an order of his honor, Judge Gary, which, together with appellant's exceptions, will be set out in the report of the case. We will first consider whether there was error on the part of the presiding judge in refusing the motion for an order of nonsuit. Rule 18 of the circuit court contains the following provisions: "A ...