Opinion
6870
April 16, 1908.
Before GAGE, J., Greenville, May, 1907. Reversed.
Action by Louis M. Hubbard against Furman University and E.C. James. From circuit order setting aside service of amended complaint, plaintiff appeals.
Mr. D. Lewis Dorroh, for appellant, cites: 61 S.C. 555; 17 S.C. 218; 54 S.C. 223.
Messrs. B.M. Shuman and Haynesworth Patterson, contra, cite: 3 S.C. 606; 20 S.C. 153; 28 S.C. 449: 26 S.C. 474; Code of Proc., 194; 21 S.C. 221, 226; 24 S.C. 165; 57 S.C. 235.
April 16, 1908. The opinion of the Court was delivered by
The Circuit Court, in sustaining a demurrer to the original complaint on the ground that it did not contain a statement of facts sufficient to constitute a cause of action, gave the plaintiff leave to amend his complaint within twenty days. The plaintiff appealed from the order and this Court, in general terms, affirmed the judgment of the Circuit Court. The remittitur was filed in the Circuit Court on 22nd April, 1907, and within twenty days thereafter, on the 29th April, 1907, the plaintiff filed his amended complaint, claiming to be within the time allowed him to amend. The Circuit Court held otherwise, and on motion of the defendant, dismissed the complaint.
We think the case is controlled by Barnwell v. Marion, 54 S.C. 223, 32 S.E., 313. In that case the demurrer was overruled with leave to the defendant to answer in twenty days. On appeal, the judgment of the Circuit Court was affirmed. The point was then made that the defendant's time to answer was to be counted from the date of the order of the Circuit Court, and that time expired pending the appeal, an answer tendered within twenty days after the remittitur from the Supreme Court had been filed in the Circuit Court, was too late. This Court held the period of twenty days was to be counted from the time the remittitur was filed.
When this case was here before the question was not made that the order then appealed from was not appealable, and it is not necessary now to decide it.
The judgment of this Court is, that the judgment of the Circuit Court be reversed.