Smith v. Heyward, (No. 10010.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: GAGE
• Citation: 96 S.E. 289
• Parties: SMITH . v. HEYWARD et al.
• Docket Number: (No. 10010.)
• Decision Date: 01 July 1918

96 S.E. 289

SMITH .
v.
HEYWARD et al.

(No. 10010.)

Supreme Court of South Carolina.

July 1, 1918.

[96 S.E. 290]

Appeal from Common Pleas Circuit Court of Greenville County; John S. Wilson, Judge.

Suit by Robert T. Smith, as executor of Elizabeth M. Heyward, deceased, against Julius H. Heyward, as executor of Elizabeth M. Heyward, deceased, as guardian of Elizabeth V. Williamson, and in his own right, and others. From an order overruling demurrer, and denying motion to strike matter from the complaint, Heyward appeals. Appeal dismissed.

L. K. Clyde, of Greenville, for appellant.

Miller, Bissell & Miller, of Charleston, and Haynsworth & Haynsworth, of Greenville, for respondent.

GAGE, J. This cause has been hence once before.' 107 S. C. 543, 93 E. 395. At the inception of the trial at Greenville as was above ordered, the defendant Heyward "demurred to so much of the amended complaint * * * as is contained in paragraphs 4, 5, and 6, " and moved the court in the same pleading "to strike said paragraphs out of the complaint, upon the ground that they are improperly united to the real cause of action, are irrelevant thereto, [and] redundant. * * *" The demurrer was overruled, and the motion to strike out was refused in a short order, and the appeal is from it

Whether the defendant's procedure be considered a demurrer or a motion to strike out irrelevant and redundant matter, there is no reversible error in the order of the circuit court. The complaint pleads many circumstances; that is often so in a suit in equity, and especially where the construction of a will is involved, and where an estate is to be administered. The prime object of the suit is for instructions by the court towards the administration of the estate according to the terms of the will. Incident to that, and as a suggested difficulty towards administration, the complaint alleges that the two executors are not agreed about some matters, and these differences are the things alleged in paragraphs 4, 5, and 6. These allegations do not in any view state a cause of action; they are part of the whole story which the plaintiff recites. Demurrer, therefore, does not lie to them, of course.

Turning to the other issues before stated, even though the things alleged in the three paragraphs are irrelevant, and we express no opinion about that, the refusal of the court to strike them out is not appealable. The question of the relevancy and the competency of the allegations, when they come to be proven,...