Wilson v. Gibbes Machinery Co.

• Decision Date: 01 March 1939
• Docket Number: 14829.
• Citation: Wilson v. Gibbes Machinery Co., 189 S.C. 426, 1 S.E.2d 490 (S.C. 1939)
• Parties: WILSON et al. v. GIBBES MACHINERY CO. et al.
• Court: South Carolina Supreme Court

1 S.E.2d 490

189 S.C. 426

WILSON et al. v. GIBBES MACHINERY CO. et al.

No. 14829.

Supreme Court of South Carolina

March 1, 1939

B B. Evans and Harold Eubanks, both of Columbia, for appellants.

Melton & Belser and Robinson & Robinson, all of Columbia for respondents.

BONHAM Justice.

The complaint alleges that the plaintiffs are the duly appointed attorneys in fact to bring this action for the heirs of Charlotte Wilson, deceased, and for themselves as heirs at law of Charlotte Wilson; that prior to 1865, when the records of Richland County were burnt, Charlotte Wilson was the owner of a tract of land in Columbia, S. C., bounded by Richardson Wheat, Blossom and Assembly Streets; that her records of title were destroyed in this fire; that Charlotte Wilson died intestate and seized in fee and in possession of this tract of land.That by means unknown to these plaintiffsthe defendants have claimed title to parts of this tract of land have taken unlawful possession thereof and erected buildings thereon; plaintiffs and the heirs of Charlotte Wilson are the sole heirs at law and distributees of Charlotte Wilson and are entitled to the possession of said tract of land; they pray for judgment for damages in the sum of ten thousand dollars.

Each of the defendants moved to require the plaintiffs to make their complaint more definite and certain, and each of them demurred to the complaint.These motions and demurrers are based upon practically identical grounds.The plaintiffs moved for judgment on the pleadings.Judge Sease heard these motions and filed an order granting the motions of the defendants that the complaint be made more definite and certain in the following particulars: 1.By showing when the plaintiffs allege Charlotte Wilson was seized and died possessed of the said tract of land.2.By showing (a) the date of the death of the said Charlotte Wilson; (b) the number of her heirs at law at the date of her death; (c) whether such heirs at law were of lawful age; (d) the names and ages of her heirs at law at the present time.3.By particularly identifying the parts of said tract of land of which it is claimed defendants have taken possession and erected buildings thereon.By showing further, which part is claimed to be in the possession of each of the defendants.4.By showing the date when each of the defendants took possession of the respective parts of said tract of land, which it is claimed is now in the possession of each.

The demurrers were based upon practically the same grounds, to wit: 1.That the plaintiffs suing as attorneys in fact for the heirs of Charlotte Wilson, deceased, have not the legal capacity to sue, as the law requires that suit be instituted in the name of the principal and not in the name of the attorney in fact.2.That there is a defect of partiesplaintiff in the failure to name and make parties all of the heirs of said Charlotte Wilson, deceased.3.That several causes of action have been improperly joined herein, that is to say: One against Gibbes Machinery Company, and the other against McCreery Land and Investment Company.

Plaintiff gave notice of motion for judgment on the pleadings based on the following grounds:

"(1) The laws of pleadings allow only a demurrer or answer to be interposed to the complaint; further that the demurrer cannot contain more than one cause as stated in Section 458 of the Code, and ask that the same be dismissed for multiplicity of causes, when the same should be taken by answer.

"(2) That the same is sham and frivolous and intended for delay and avoidance, and when the complaint clearly states facts that are in possession of the defendants or should be, as the records in the office of the Clerk of Court show.

"(3) Further that the notice to make more definite and certain is vague and indefinite, as no time or day or name of the Judge is given to hear the same.The next term of Court is prescribed by Statute, Sec. 55 of the Code, and known as spring, summer and fall terms for said County."

As preliminary to the motion for judgment on the pleadings, plaintiff's attorneys gave notice of a motion to require defendants to elect whether they would rely upon their motions to make the complaint more definite and certain, or on their demurrers.

Judge Sease's Order overruled plaintiffs' motion for judgment on the pleadings.The Order said, inter alia: "*** As it became apparent in the progress of argument that the said motions of the defendants should be granted, the said demurrers were not considered, ***."

The plaintiffs appeal from the Order upon exceptions which charge error to the trial Judge for not holding that the complaint states a cause of action and is not subject to demurrer; that it was error not to dismiss the demurrers on the ground that they were not accompanied by the certificate required by Rule 18 of the Circuit Court, and were served at the same time as the motions to make more definite and certain were served; that it was error not to pass on the demurrers as well as the motions to make more definite and certain, and, instead, to require the plaintiff to do that which is impracticable as the heirs are so numerous; that it was error not to grant the motion for judgment on the pleadings.That it was error not to require the defendants to elect whether they would rely on their demurrers or on the motions to make the complaint more definite and certain; that it was error to state in the decree that it was admitted in argument that the defendants were not tenants in common.That it was error not to state in the decree that the Constitution of this State and that of the United States say that private property shall not be taken without due process of law, whereas the property of the plaintiffs has been so taken.

We shall not discuss the exceptions seriatim, but all of them shall be considered and disposed of.

We do not think the circuit...