Walker v. McDonald

• Decision Date: 28 February 1925
• Docket Number: 11700.
• Citation: 126 S.E. 646,130 S.C. 513
• Parties: WALKER v. MCDONALD.
• Court: South Carolina Supreme Court

126 S.E. 646

130 S.C. 513

WALKER v. MCDONALD.

No. 11700.

Supreme Court of South Carolina

February 28, 1925

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by T. J. Walker against W. B. McDonald. From an order allowing defendant to amend answer by adding paragraph seeking to require plaintiff to make election between causes of action, plaintiff appeals. Reversed.

Graydon & Graydon, of Columbia, for appellant.

Melton & Belsen, of Columbia, for respondent.

FRASER J.

The respondent's statement of the history of this case is as follows:

"This is an appeal from an order of the Hon. M. S Whaley, judge of the Richland county court, dated March 12 1924, allowing the defendant to amend his answer by adding a paragraph which seeks to require the plaintiff to make an election.

The amended complaint, dated November 28, 1923, contained two causes of action; one in tort for alleged deceit in being induced to enter into a contract of partnership, and the other demanding an accounting for the alleged profits of the partnership. The proposed amendment, dated March 10, 1924 alleged that the two causes of action were inconsistent and mutually exclusive, and demanded that the plaintiff be required to elect upon which of the two causes of action he would proceed to trial. It is from the order of March 12, 1924, allowing this proposed amendment to the answer, that this appeal is taken.

While the appeal is formally from the order of the court allowing this amendment, it is to be noted that none of the exceptions directly challenges the one thing which is properly at issue in an appeal from an order allowing an amendment, namely, the discretion of the court, but all are based upon technical grounds seeking to show that by reason of previous orders or rulings in the case, the court was prevented from allowing the amendment.

History of Case.

For a proper understanding of this appeal, therefore, it is necessary briefly to review the history of the case, from which the unsoundness of the exceptions will at once appear:

Motion to Make Complaint More Definite and Certain.

(1) The original complaint dated November 6, 1923, contained two causes of action jumbled together; one being apparently in tort based upon deceit, and the other being apparently in equity for an accounting between partners. The defendant therefore made a motion to require the plaintiff to make the complaint more definite and certain by separately stating the alleged causes of action.

At the hearing of this motion the attorneys for the plaintiff stated in open court that his cause of action was neither for an accounting nor for deceit, but for breach of a contract of partnership. The court thereupon made an order dated November 24, 1923, holding that the plaintiff must be considered to have made his election on the theory of his action, and the complaint to be amended accordingly, and that the allegations as to deceit were irrelevant, and allowed the defendant 10 days within which to make a motion to strike out.

On the same day, November 24, 1923, the defendant made a motion to require the plaintiff to strike out the allegations of the complaint relative to deceit.

Demurrer for Misjoinder of Causes.

(2) The plaintiff, however, refused to abide by the election made in open court, above referred to, and before hearing the motion to strike out served an amended complaint on November 28, 1923, setting up formally the two causes of action mentioned in defendant's motion to make more definite and certain, namely, cause of action for alleged deceit in entering into the contract of partnership, and a cause of action for an accounting for the alleged profits of the partnership.

The defendant thereupon on December 17, 1923, demurred to the complaint upon the ground of misjoinder of causes of action. At the hearing of this demurrer on January 4, 1924, it was urged on behalf of the defendant that the causes of action set forth; the one being in tort for deceit, and the other being in equity for an accounting between partners, and being ultimately based upon contract, were not such as could be united in the same complaint under section 430 of the Code of Civil Procedure, particularly in view of the requirement that 'the causes of action so united must all belong to one of' the seven classes specified.

We were then, and still are, of the opinion on the authority of Rush v. Warren, 26 S.C. 72, 1 S.E. 363; Cline v. Southern Railway Co., 110 S.C. 534, 96 S.E. 532; Pomeroy, Code Procedure, § 394, that the two causes of action were not properly joinable. The court, however, relying upon the cases of Pollock v. Building Association, 48 S.C. 65, 25 S.E. 977, 59 Am. St. Rep. 695; Magruder v. Clayton, 29 S.C. 407, 7 S.E. 844, and other cases cited by the plaintiff, overruled the demurrer by order dated January 4, 1924.

At the hearing of this demurrer no question of the inconsistency of the two causes of action was presented for the consideration of the court, nor was any effort made to require the plaintiff to exercise an election between such causes of action, but the demurrer was based solely upon the principles of section 430 of the Code above referred to under the authority of section 401 of the Code authorizing a demurrer for the misjoinder of causes.

MOTION TO REQUIRE ELECTIOn.

(3) The defendant thereafter on January 14, 1924, served on the plaintiff on the same day and at the same time (1) a notice reserving the right to appeal from the order overruling the demurrer; (2) its answer; and (3) a motion to require the plaintiff to elect upon which of the two alleged causes of action set forth in the complaint he would proceed to trial.

The motion to require the plaintiff to elect came on for hearing before Judge Whaley a few days before March 7, 1924. At this hearing it was urged on behalf of the defendant that the two causes of action set forth in the complaint were inconsistent and mutually exclusive, in that the one was for a recovery of the plaintiff's contribution to the partnership agreement and amounted in substance to a disaffirmance of the contract of partnership, while the other was for an accounting of the alleged profits of the partnership and amounted to a waiver of the alleged fraud and an affirmance of the alleged contract; and that an election to pursue the one cause of action amounted to a bar to the bringing of the other. The plaintiff's attorneys argued that the motion to elect came too late, and relied principally upon the case of Ross v. Jones, 47 S.C. 211, 25 S.E. 59.

The court, while evidently sympathizing with the position of the defendant in this case, felt compelled in view of the fact that the defendant had not raised this question by answer, on authority of the case of Ross v. Jones, above cited, to overrule the motion to require the election. This the court did, however, expressly on the ground that the motion came too late, and without passing on the 'merits of the question of election.'

Motion to Amend.

(4)

The defendant thereupon, in view of the court's ruling served upon the plaintiff's attorneys a notice dated March 10, 1924, of the proposed amendment to the complaint, setting up substantially that the plaintiff should be required to make the election on which of the two causes of action he would proceed to trial.

This motion came on for hearing by the court at

...