Opinion
16675
October 21, 1952.
Messrs. Samuel Want, Sam Rogol, and LeRoy M. Want, all of Darlington, for Appellant, cite: As to corroboration being indispensable to establish adultery based on testimony as to what husband told wife: 215 S.C. 502, 56 S.E.2d 330. As to Circuit Judge being in error in refusing motion for leave to amend answer so as to allege adultery or in alternative for leave to file a supplemental answer: 17 Am. Jur., 268, Sec. 233; 17 Am. Jur., 270, Sec. 236; Bowers, Judicial Discretion of Trial Courts, 124, Sec. 81; 176 S.C. 36, 179 S.E. 671; 108 S.C. 105, 93 S.E. 327; 81 S.C. 547, 62 S.E. 1113; 54 S.C. 109, 32 S.E. 73; 72 S.C. 433, 53 S.E. 120; 188 S.C. 149, 198 S.E. 395.
Messrs. George W. Keels, of Florence and J.U. Watts, Jr., of Darlington, for Respondent. Messrs. Samuel Want, Sam Rogol, and LeRoy M. Want, of Darlington, for Appellant, in Reply.
October 21, 1952.
Decision upon a prior appeal in this case is reported in 216 S.C. 451, 58 S.E.2d 731. Under it the defendant, who is now appellant, was given leave to move to amend her answer within twenty days after the filing of the remittitur, if she was so advised. Our judgment, supra, was filed April 4, 1950. A conforming motion to amend was not made. Instead, the matter was referred on the merits to the acting master who completed the taking of testimony, at which time, on April 18, 1951, appellant noticed motion to amend her answer. In support of the motion she tendered the affidavit of her brother, who lived near her, which recites an alleged factual occurrence on March 15, 1947, — over two years before this action was instituted on August 9, 1949.
The motion to amend, or file supplemental answer, was denied by order dated May 9, 1951, wherefore the instant appeal. The exception charges error for that it would have been in the furtherance of justice to allow the defendant to amend her answer or plead further. The facts, particularly the chronology, which have been stated amply support the order under appeal and discussion is unnecessary, but see Jordan v. State Highway Dept., 188 S.C. 83, 198 S.E. 174 , and cases cited. It should be added in fairness to appellant's present counsel that they did not enter the case until after this appeal was taken and transcript of record therefor was settled by order of the lower court.
The exception is overruled and the order affirmed.
BAKER, C.J., and FISHBURNE, STUKES, TAYLOR and OXNER, JJ., concur.