Sims v. Davis

• Decision Date: 08 December 1904
• Citation: 49 S.E. 872,70 S.C. 362
• Parties: SIMS et al. v. DAVIS et al.
• Court: South Carolina Supreme Court

49 S.E. 872

70 S.C. 362

SIMS et al. v. DAVIS et al.

Supreme Court of South Carolina

December 8, 1904

Appeal from Common Pleas Circuit Court of Richland County; Townsend Judge.

Action by James C. F. and Frank E. Sims against George W. Davis. On the death of the defendant the action was continued against his heirs and administrators. Judgment for plaintiffs, and defendants appeal. Reversed.

The plaintiffs commenced an action on September 5, 1891, against the defendant, George W. Davis, for damages for trespass on lands in possession of plaintiffs, and to which they claimed title. Defendant answered, denying the allegations in the complaint, and alleging title in himself to the land. In April, 1899, the following notice of motion and affidavit was served upon Mrs. Mary E. Davis and G. Wilmot Davis individually, and as administrator of George W. Davis deceased:

"To Mrs. Mary E. Davis and G. Wilmot Davis, and to G Wilmot Davis, as administrator of the estate of George W Davis, deceased: Take notice that Frank E. Sims will apply to the presiding Judge of the Court of Common Pleas for Richland County in open Court, on Monday, April 24, 1899, at 10 A. M., or as soon thereafter as counsel can be heard, for an order granting to said Frank E. Sims leave to serve and file a supplemental summons and complaint reviving said action in his name against you and all of you. The motion will be based upon the original summons, complaint and answer in the cause and upon the affidavit herewith served. Respectfully, Robt. W. Shand, Attorney for Frank E. Sims."

"Affidavit. State of South Carolina, Richland County. Before me personally comes Frank E. Sims, and says on oath that he is one of the plaintiffs in this action; that the action was commenced on the 31st August, 1891, by leaving summons and complaint with the sheriff of Richland county for service, the said complaint being for injury to and trespass upon real estate of the plaintiffs; that the said George W. Davis served his answer to said complaint on June 24, 1892, claiming title in fee to the said real estate; that the said James C. F. Sims died intestate in October, 1891, and deponent has since acquired all the rights, title and interest of all the distributees in and to the land upon which the said trespasses are alleged to have been committed, and to which a title in fee was claimed by said G. W. Davis: that the defendant, George W. Davis, died intestate on July 5, 1895, leaving him surviving as his heirs at law his widow, Mary E. Davis, and his son, G. Wilmot Davis, and the said G. Wilmot Davis is administrator of his estate; that no settlement nor adjustment of the issues raised by the said pleadings has ever been made, and the case is still on the calendar of this court. Frank E. Sims.

Sworn to before me, this April 18, 1899. Robt. W. Shand, Notary Public for S.C. [ L. S.]"

This motion was heard at the November, 1899, term by his honor, Judge James Aldrich. Messrs. W. D. Melton and J. S. Muller, disclaiming in so doing to represent either Mrs. Mary E. Davis or G. Wilmot Davis, or G. Wilmot Davis as administrator of George W. Davis, deceased, and appearing as amici curiae only, resisted the motion. On November 8, 1899, Judge Aldrich filed the following order:

"This was a motion for leave to serve and file a supplemental summons and complaint, reviving the above-entitled action in the name of Frank E. Sims, as surviving plaintiff, against Mary E. Davis and G. Wilmot Davis as heirs at law, and G. Wilmot Davis as administrator of the estate, of the defendant George W. Davis, who is alleged to have died in October, 1891. After reading and filing the affidavit of Frank E. Sims and the notice of said motion, and the pleadings on file in said action, and after hearing argument by Robert W. Shand, Esquire, for the motion, and by William D. Melton and J. S. Muller, attorneys, against the motion, it appearing that more than a year has elapsed since the death of said George W. Davis, it is ordered that the said motion be, and the same is hereby, refused. upon the ground that the matter cannot properly be brought before the court by motion. James Aldrich, Presiding Judge. November 8th, 1899."

In August, 1902, the following supplemental complaint was served upon G. Wilmot Davis individually, and as administrator of George W. Davis, deceased, and upon Mrs. Mary E. Davis:

"Frank E. Sims, one of the plaintiffs above named, by way of supplement to and revivor of the action herein below stated, complains and says:

First. That an action was commenced in this court on 1st September, 1891, by the plaintiffs above named against the defendant above named, the summons wherein was personally served on the defendant on 5th September, 1891, and the complaint whereof was in words and figures as follows:

'The State of South Carolina, Richland County. In the Court of Common Pleas. James C. F. Sims and Frank E. Sims, Plaintiffs, against George W. Davis, Defendant. The plaintiffs, complaining of the defendant, allege:

(1) That they are tenants in common, are the owners in fee of all that certain tract of land, situate, lying, and being in the county of Richland and state aforesaid, on the Stateburg or Garner's Ferry Road, about two and one-half miles from the city of Columbia, butting and bounded toward the north on the road from Columbia to Stateburg, east on lands of Dr. Fisher, formerly of the estate of Wade Hampton, south partly on lands of Dr. L. J. Hancock, and partly on lands now or formerly known as the "Race Track Field," which said last-mentioned tract of land now belongs to one Newsom.

(2) That during the fall of the year 1890, on the _______ day of November therein, while these plaintiffs were in possession thereof as owners as aforesaid, defendant wrongfully and unlawfully entered upon plaintiffs' said land, and without their consent, and after being forbidden so to do, trod down the grass, plowed up the soil, and otherwise injured said premises, to plaintiffs' damage one thousand dollars.

Wherefore plaintiffs demand judgment against the defendant for the sum of one thousand dollars, and the costs of the action.

Andrew Crawford,

Plaintiffs' Attorney.

31st August, 1891.'

Second. That on 24th June, 1892, the defendant duly served his answer, whereby he asserted and claimed title in fee and right of possession to the parcel of land described in said complaint, and the cause was duly docketed on the calendar of this court.

Third. That the plaintiff James C. F. Sims died intestate in October, 1891, and his surviving copartner has since acquired by purchase and devise all of the said James C. F. Sims' estate in said parcel of land.

Fourth. That the defendant, George W. Davis, died intestate on 5th July, 1895, leaving him surviving, as his distributees, his widow, Mary E. Davis, and his son, G. Wilmot Davis, and the said G. Wilmot Davis is the duly appointed administrator of his father's estate.

Fifth. That no settlement or adjustment of the issues raised by said pleadings has ever been made, and the cause is still on the calendar of this court.

Wherefore the plaintiff Frank E. Sims prays that the said action may be continued in his name against the said Mary E. Davis and G. Wilmot Davis, as heirs at law of George W. Davis, deceased, and against G. Wilmot Davis, as administrator of the estate of said George W. Davis, deceased, and that he have judgment against said administrator, as prayed for in said original complaint, and against the said Mary E. Davis and G. Wilmot Davis, on the issue raised by the answer of their intestate.

Robt. W. Shand,

Attorney for Frank E. Sims.

August 20, 1902."

At this stage of the proceeding, the case was called up by Mr. Robert W. Shand, plaintiff's attorney, before Judge Hudson, as special judge, holding a special term of the court in March, 1903. Mr. Shand moved the court for an order continuing the action in the name of Frank E. Sims against the said G. Wilmot Davis and Mary E. Davis, as heirs at law of George W. Davis, deceased, and against G. Wilmot Davis, as administrator of the estate of George W. Davis, deceased. Mr. J. S. Muller resisted the motion, stating that he had been attorney for the deceased defendant, and disclaiming to represent in so doing either Mary E. Davis or G. Wilmot Davis, or G. Wilmot Davis, as administrator of the estate of George W. Davis, deceased, and appearing as amicus curiae only. Judge Hudson refused Mr. Shand's motion for an order of continuance, and thereupon the following ex parte order was applied for by Mr. Shand and granted by Judge Hudson:

"On hearing the supplemental complaint in this case, dated August 20, 1902, signed by Robt. W. Shand, attorney for Frank E. Sims, and served personally on Mrs. Mary E. Davis and G. Wilmot Davis, on 4th September, 1902, as shown by proof of service indorsed thereon, and on application of Frank E. Sims, by his attorney, Robt. W. Shand, it is ordered that the said Mary E. Davis and G. Wilmot Davis show cause before this court, within twenty days after the service of a copy of this order upon them, why the said action should not be continued by Frank E. Sims against them as heirs at law of George W. Davis, deceased, on the supplemental complaint heretofore served upon them as aforesaid. J. H. Hudson, Special Judge. March 23, 1903."

This order to show cause was served upon the parties named, and within the time limited therein the following return was served:

"Mary E. Davis and G. Wilmot Davis, upon whom has been served an order of this court, dated March 23, 1903, requiring them to show cause before this court, within twenty days after the service of a copy of said order upon them, why the said action should not be continued by Frank E. Sims against them as heirs at law of George

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