White v. Harby

• Decision Date: 21 March 1935
• Docket Number: 14022.
• Citation: 179 S.E. 671,176 S.C. 36
• Parties: WHITE v. HARBY et al.
• Court: South Carolina Supreme Court

179 S.E. 671

176 S.C. 36

WHITE v. HARBY et al.

No. 14022.

Supreme Court of South Carolina

March 21, 1935

Appeal from Common Pleas Circuit Court of Sumter County; M. M. Mann Judge.

Action by Elizabeth White against H. J. Harby and others. From an order dismissing the summons and complaint, plaintiff appeals.

Reversed.

CARTER J., dissenting.

The Order of Judge Mann directed to be reported follows:

This matter comes on before me in open court upon a duly noted motion on behalf of the defendants, to dismiss the summons and complaint in this case on the ground that the plaintiff has failed to comply with the order of his honor, Judge E. C Dennis, which was filed on October 28, 1932, requiring the plaintiff to amend her complaint by stating separately the causes of action jumbled therein.

The affidavit of R. D. Epps submitted with said motion has not been questioned in the counter affidavit submitted by the attorney for the plaintiff.

In turning to the complaint in this case, it is found that the defendants are charged with negligently and recklessly managing the affairs of the Sumter Trust Company, with neglect and reckless conduct and breach of trust in connection with their duties as such directors.

The court readily recognizes the rights of the plaintiff; but on the other hand, the court is not unmindful of the fact that the rights of the defendants are also involved.

Charging the defendants with reckless disregard of a high duty, and with breach of trust, must necessarily place gentlemen of the standing of these defendants under a cloud, and under such suspense as to make a long delay in the trial of the cause extremely painful and harassing to them.

Also, a number of the defendants are advanced in years, three of the directors having died since the closing of the Sumter Trust Company, and it also appears that the delay occasioned by the failure of the plaintiff's attorneys to promptly comply with the order of his honor, Judge Dennis, has seriously injured the interests of the defendants.

Although the order of his honor, Judge Dennis, did not state the time within which the complaint should be amended, the court believes that the same should have been promptly amended and within a reasonable time. The Legislature, in passing upon a reasonable time for serving an answer after a complaint has been served, gives 20 days, and the court thinks that this would be a fair measure of the time within which his honor, Judge Dennis, contemplated that the amended complaint would be served .

The court sympathizes with both parties in this matter, but feels that the reasons given by the attorney for the plaintiff are not sufficient; especially in view of the fact that no requests for indulgence were made either to the court or to the attorneys for the defendants.

The court therefore feels constrained, in the exercise of its discretion, to grant the motion and dismiss the suit.

It is therefore ordered, adjudged, and decreed that the summons and complaint in this case be, and the same are hereby, dismissed.

Melton & Belser, of Columbia, for appellant.

Epps & Epps, R. O. Purdy, and M. M. Weinberg, all of Sumter, for respondents.

C. J. RAMAGE, Acting Associate Justice.

In the opinion of Mr. Justice CARTER the facts, orders, and motions are so clearly set out that it is useless to rehearse them here. After much study and deliberation, I am reluctantly forced to the conclusion that Judge Mann was in error in this case, and that the court ought to reverse his order.

It is observed that no time limit is fixed in the order of Judge Dennis. If respondents wished a time limit fixed in this order, no doubt Judge Dennis would have inserted it in the first instance, or would have refused to have done this. If at any time afterwards respondents desired a time limit to be fixed, a subsequent motion could have been made by them for the fixing of such a time limit.

The entire purpose and aim of our Code of Civil Procedure is to liberalize pleadings and practice, to promote justice and prevent snap judgments of any kind, to the end that every man shall have his day in court and not be thrown out of court by mere whim and caprice.

Respondents take the position that the filing of a pleading comes under the head of "performing a condition." Justice Carter has already quoted rule 62 in his opinion, and it is unnecessary to repeat it here. The ordinary meaning of performing a condition is where some act is required to be done preliminary to the vesting of some right or estate or the obtaining of some benefit. In other words, if a party performs A then B will come into existence.

Bouvier defines a condition as follows:

"A qualification, restriction, or limitation modifying or destroying the original act with which it is connected.

A clause in a contract or agreement which has for its object to suspend, rescind, or modify the principal obligation, or, in a case of a will, to suspend, revoke, or modify the devise or bequest."

Funk and Wagnall defines condition as follows:

"An event, fact, or the like that is necessary to the occurrence of some other, though not its cause; a prerequisite." An examination of the order of Judge Dennis shows that nothing is hinged or dependent on the filing of the amended complaint. There is no other event made dependent on the filing of the order of Judge Dennis. He merely directed the amendment of the complaint, but did not attach any other contingency upon this, and the filing of a complaint would not be the performance of a condition in the sense contemplated in the rule of court above quoted.

In the circumstances in the instant case, it is apparent that it was not intended to be complied with within twenty days for the reason that the original complaint itself had alleged, and showed, that a suit was about to be instituted for the purpose of substituting a new trustee for the funds in which the appellant here in her individual capacity had only a life interest, with remainder to other parties, and of course it was obvious that if the objection on this score was made by the defendants, it would be necessary to bring suit in the name of such substituted trustee. Fant v. Brissey, 150 S.C. 15, 147 S.E. 632.

Hence, the order in the case at bar must be construed as having provided in effect that the amended complaint need not be served until after the completion of the proceedings for the substitution of the new trustee upon the theory that the law will not order the doing of a vain or futile thing or act. For this reason also the rule has no application to the order in the case at bar.

Brown v. Easterling, 59 S.C. 472, 38 S.E. 118, cannot be applied as an authority governing this case. In that case it appeared that after the case had been put on the roster in regular order and called to trial, an oral demurrer thereto was sustained and the plaintiff therein was permitted, if so advised, to serve an amended complaint within twenty days, the order expressly requiring plaintiff to serve the amended complaint within twenty days. The plaintiff having failed to serve the amended complaint within the twenty days as required, Judge Hudson, a succeeding judge, allowed the service of the amended complaint after the time limited, and this action of Judge Hudson was reversed on appeal to this court, upon the ground particularly that the order sustaining the demurrer with leave to file an amended complaint, was a final order and could only be modified by the judge who made it.

The case of Kaylor v. Hiller, 72 S.C. 433, 52 S.E. 120, 121, illustrates the true rule on this subject and throws a strong light upon it. In that case Judge Purdy allowed the defendant to file an answer after the expiration of the time fixed in the order of Judge Watts, and it was objected that under the case of Brown v. Easterling, supra, Judge Purdy had no right to make the order.

This court did not agree with the contention that Judge Purdy was wrong, and pointed out that the order of Judge Watts was merely an administrative one, and was not a final order as was the case in Brown v. Easterling, using the following language: "The order of Judge Watts belongs to the class of administrative orders as distinguished from final orders. The order does not involve the merits and makes no determination which would authorize plaintiffs to have judgment against defendants; hence cases along the line of Brown v. Easterling, 59 S.C. [472] 479, 38 S.E. 118, do not apply. That case held that a succeeding circuit judge has no power to permit the plaintiff to serve an amended complaint after expiration of the time prescribed therefor, in an order sustaining the demurrer to the complaint and granting leave to serve an amended complaint. The judgment on demurrer was a determination of the merits and authorized dismissal of the complaint, upon failure to comply with the terms offered. * * * The order of Judge Watts being administrative instead of final, it was such an order as Judge Purdy in his discretion could modify."

Judge Dennis closes his order with these words: "After service of the complaint so amended, the defendants shall have twenty days within which to reply, demur, or otherwise plead thereto." This shows that it was not contemplated that the complaint should be served within twenty days, for the reason that a time limit was placed on any pleadings subsequent to the complaint. The fact that a time limit was placed on the defendants and none was placed on the plaintiff would lead to the fair inference that none was intended. Expressio unius est exclusio alterius.

The same principle was applied in a case which held that because the statute did not, in terms, mention an answer that the provision of the statute that a ...