Opinion
12815
January 22, 1930.
Before RAMAGE, J., Sumter, June, 1929. Reversed and amended summons and complaint dismissed.
Action by J.R. McEachern against John Wilson and others, trustees of the estate of Elizabeth Wilson, deceased, and another. From an order denying motion to dismiss amended summons and complaint, defendants appeal.
The original and amended complaints and the affidavit of L.D. Jennings here follow:
ORIGINAL COMPLAINTThe plaintiff above named, complaining of the defendants, alleges:
1. That the defendants are the trustees of the estate of Elizabeth Wilson, deceased, and that they are all residents of the City and County of Sumter, State of South Carolina.
2. That the plaintiff is a practicing physician, and has been such for many years. That on the 12th day of August, 1922, plaintiff closed said account with his promissory note in the sum of Two Thousand Three Hundred Thirty-eight and 35/100 ($2,338.35) Dollars for professional services rendered to W.B. Wilson by the plaintiff from time to time when he was sick, and in order to close said account the said W.B. Wilson did on the 12th day of August, 1922, close said account with his promissory note, bearing date August 12, 1922, for said sum payable on the 12th day of October, 1922, with interest from the 12th day of August, 1922, at the rate of eight per cent. per annum until paid.
3. The plaintiff is informed and believes, that prior to the 22nd day of November, 1922, I.C. Strauss was the Agent and Attorney of Mrs. Elizabeth Wilson and attended to practically all of her business affairs, and was acting as such Agent and Attorney under the authority of Mrs. Elizabeth Wilson at the time hereinafter mentioned, and had full charge of representing her as Agent and Attorney in reference to the transaction herein referred to. That the said I.C. Strauss was at the same time, and had been for some time acting as Agent and Attorney for Thomas Wilson, and had also been acting as Agent and Attorney for the executors and trustees of the estate of Thomas Wilson and was perfectly familiar with the assets of the estate of Thomas Wilson; knew the value and the interest of the heirs of said estate, including that of W.B. Wilson in said estate.
4. That on or about the 22nd day of November, 1922, the said I.C. Strauss acting as Attorney and Agent for Mrs. Elizabeth Wilson, as the plaintiff is informed and believes, came to the plaintiff in Tampa, Fla., and told him that there was absolutely no chance for him to collect said note of W. B. Wilson, as W.B. Wilson owed his father's estate more than he would ever have coming to him; but that his mother, Mrs. Elizabeth Wilson would be willing to give him One Thousand ($1,000.00) Dollars for said note. The plaintiff alleges that he had no other information as to what W.B. Wilson was worth, nor had he any other information as to what was the value of his interest in his father's estate, nor had he any other information as to W.B. Wilson's indebtedness to his father's estate, and at the time had no reason to doubt the representations made to him by the said I.C. Strauss; he believed them to be true, and relying absolutely upon the truthfulness of said representations made to him by said I.C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson, he accepted said One Thousand $1,000.00) Dollars from Mrs. Elizabeth Wilson for said note, and surrendered it to her.
5. The plaintiff alleges, upon information and belief, that at the time said I.C. Strauss represented to him that W.B. Wilson would have nothing coming to him out of his father's estate; he well knew that said representations were not true, but on the contrary he knew that W.B. Wilson would have around Two Hundred Thousand ($200,000.00) Dollars coming to him out of said estate, and would be amply able to pay said note in full; and he knew that the plaintiff did not know what would be coming to W.B. Wilson out of his father's estate, and he knew that the plaintiff did not know what was the indebtedness of W.B. Wilson to his father's estate; and he knew that the plaintiff in accepting said One Thousand ($1,000.00) Dollars for said note relied absolutely upon his representations as to the chances of collecting said note in full. The plaintiff alleges that said representations were willfully and wantonly made to him for the purpose of inducing him to accept One Thousand ($1,000.00) Dollars for said note, which he knew at the time was worth its face value.
6. The plaintiff further alleges, upon information and belief that the said I.C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson knew at the time he made said representations that said note was worth its face value; he knew approximately what would be coming to W.B. Wilson out of his father's estate, and he knew that it would be approximately Two Hundred Thousand ($200,000.00) Dollars, and the plaintiff further alleges that Mrs. Elizabeth Wilson knew that there would be coming to W.B. Wilson out of said estate around Two Hundred Thousand ($200,000.00) Dollars, but notwithstanding this knowledge, the said I.C. Strauss, Attorney and Agent for Mrs. Elizabeth Wilson willfully, wantonly, and for the purpose, and with the intention of inducing the plaintiff to accept One Thousand ($1,000.00) Dollars for said note, represented to the plaintiff that W.B. Wilson owed his father's estate more than was coming to him, and that he would have absolutely nothing left.
7. The plaintiff now alleges, upon information and belief, that said representations were not true, but on the contrary W.B. Wilson had coming to him out of his father's estate over and above all of his indebtedness to said estate a sum in excess of Two Hundred Thousand ($200,000.00) Dollars, which fact the plaintiff alleges upon information and belief, was known to both I.C. Strauss and to Mrs. Elizabeth Wilson at the time said representations were made, and they knew that the same was unknown to the plaintiff.
9. That as a result of the plaintiff's accepting One Thousand ($1,000.00) Dollars for said note, he has sustained actual damages of Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars, these actual damages being arrived at as follows: Interest on One Thousand ($1,000.00) Dollars from August 12, 1922, the date of said note to November 22, 1922, on said thousand dollars, amounting to Twenty-two and 22/100 ($22.22) Dollars, and interest on the balance of said note, to-wit, One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars from the date of said note August 12, 1922, to November 1, 1928 amounting to Six Hundred Sixty-two and 2100 ($662.02) Dollars added to the Twenty-two and 22/100 ($22.22) Dollars makes a total of Six Hundred Eighty-eight and 32/100 ($688.32) Dollars added to One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars makes Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars. He has been without the use of this money all of this time, he has been put to the expense of having to employ counsel to bring this action; will be forced to the necessity and expense of being absent from his business for the purpose of attending Court at the trial of this cause, all of which was caused by reason of the wilful misrepresentations made to the plaintiff by the Agent and Attorney of Mrs. Elizabeth Wilson which resulted in the plaintiff being defrauded out of the sum herein alleged that was due him by W.B. Wilson. The plaintiff further alleges, upon information and belief, that after receiving said note, that Mrs. Elizabeth Wilson by and through her said Agent and Attorney collected said note in full from W.B. Wilson, and the plaintiff further alleges that said representations were made for the purpose of obtaining said note for less than its true value, which value was known to the defendants' intestate with the intention of realizing its full value from W.B. Wilson and thereby defrauding the plaintiff out of the difference between the thousand dollars paid the plaintiff and the actual worth of said note, and as result of the facts herein alleged, the plaintiff alleges that he has been injured and damaged, including actual and punitive damages in the sum of Ten Thousand ($10,000.00) Dollars and the defendants as the trustees of the estate of Mrs. Elizabeth Wilson are liable to him for said damages.
Wherefore, the plaintiff demands judgment against the defendants for the sum of Ten Thousand $10,000.00) Dollars and for the cost of this action. L.D. Jennings, Plaintiff's Attorney, (Duly verified.)
AMENDED COMPLAINTThe plaintiff above named, complaining of the defendants, alleges:
1. That he is informed and believes that Elizabeth Wilson departed this life testate, prior to the year 1927, leaving of force her last will and testament; that in and by the terms of said last will and testament, she appointed the defendants John Wilson, G.A. Lemmon and Mary Wilson, executors of her said last will and testament, and authorized them, or the survivors of them, from time to time and at such times as they deem proper, to sell and dispose of any property of hers at such price or prices, and on such terms as they may deem for the best interest of her estate; that under the terms of said will the said Elizabeth Wilson gave and bequeathed unto John Wilson. G.A. Lemmon and Mary Wilson, as a Board of Trustees certain funds to be held in trust and paid over at certain times to the respective parties named in the said last will and testament; that in paragraph 2 of said will of Elizabeth Wilson it is provided:
"I give, devise and bequeath all the rest and residue of my property unto my daughter, Mary, but should my daughter, Mary, pre-decease me, leaving surviving her my son, Edwin Ralph Wilson, then I give, devise and bequeath the rest and residue of my estate unto my Board of Trustees hereinafter named, to hold the same for the use and benefit of Edwin Ralph Wilson for and during the term of his life," etc.
That the said Mary Wilson did not predecease her mother, Mrs. Elizabeth Wilson, and in and by the terms of said will she became the owner of all the rest and residue of her property.
2. That said executors, John Wilson, G.A. Lemmon and Mary Wilson have heretofore been discharged as executors of said estate by the Probate Court in and for the County of Sumter; that the fraud hereinafter alleged did not come to the knowledge of the plaintiff until after said executors had been discharged by said Court, and the plaintiff alleges that the estate of the said Elizabeth Wilson is liable to the plaintiff for the money hereinafter mentioned, and that the defendants as Trustees, who now hold a large portion of said estate in trust, and the defendant, Mary Wilson, who is the owner of the rest and residue of said estate, are liable to the plaintiff for the money herein sued for to the extent of the value of the estate of Mrs. Elizabeth Wilson which they now hold.
3. That the plaintiff is a practicing physician, and has been such for many years. That on the 12th day of August, 1922, W.B. Wilson was indebted unto the plaintiff in the sum of Two Thousand Three Hundred Thirty-eight and 35/100 ($2,338.35) Dollars for professional services rendered to W.B. Wilson by the plaintiff from time to time when he was sick, and in order to close said account, the said W.B. Wilson did on the 12th day of August, 1922, close said account with his promissory note, bearing date August 12, 1922, for said sum, payable on the 12th day of October, 1922, with interest from the 12th day of August, 1922, at the rate of eight (8%) per cent per annum, until paid.
4. The plaintiff is informed and believes, that prior to the 22nd day of November, 1922, I.C. Strauss was the Agent and Attorney of Mrs. Elizabeth Wilson, and attended to practically all of her business affairs, and was acting as such Agent and Attorney under the authority of Mrs. Elizabeth Wilson at the times hereinafter mentioned, and had full charge of representing her as Agent and Attorney in reference to the transaction herein referred to. That the said I.C. Strauss was at the same time, and had been for some time acting as Agent and Attorney for Thomas Wilson, and had also been acting as Agent and Attorney for the executors and trustees of the estate of Thomas Wilson and was perfectly familiar with the assets of the estate of Thomas Wilson; knew the value and the interest of the heirs of said estate, including that of W.B. Wilson in said estate.
5. That on or about the 22nd day of November, 1922, the said I.C. Strauss acting as Attorney and Agent for Mrs. Elizabeth Wilson, as the plaintiff is informed and believes, came to the plaintiff in Tampa, Florida, and told him that there was absolutely no chance for him to collect said note of W.B. Wilson, as W.B. Wilson owed his father's estate more than he would ever have coming to him; but that his mother, Mrs. Elizabeth Wilson would be willing to give him One Thousand ($1,000.00) Dollars for said note. The plaintiff alleges that he had no other information as to what W.B. Wilson was worth, nor had he any other information as to what was the value of his interest in his father's estate, nor had he any other information as to W.B. Wilson's indebtedness to his father's estate, and at the time had no reason to doubt the representations made to him by the said I.C. Strauss; he believed them to be true, and relying absolutely upon the truthfulness of said representations made to him by said I.C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson, he accepted said One Thousand ($1,000.00) Dollars from Mrs. Elizabeth Wilson for said note, and surrendered it to her.
6. The plaintiff alleges, upon information and belief, that at the time said I.C. Strauss represented to him that W.B. Wilson would have nothing coming to him out of his father's estate; he well knew that said representations were not true, but on the contrary he knew that W.B. Wilson would have around Two Hundred Thousand ($200,000.00) Dollars coming to him out of said estate, and would be amply able to pay said note in full; and he knew that the plaintiff did not know what would be coming to W.B. Wilson out of his father's estate, and he knew that the plaintiff did not know what was the indebtedness of W.B. Wilson to his father's estate; and he knew that the plaintiff in accepting said One Thousand ($1,000.00) Dollars for said note relied absolutely upon his representations as to the chances of collecting said note in full. The plaintiff alleges that said representations were willfully and wantonly made to him for the purpose of inducing him to accept One Thousand ($1,000.00) Dollars for said note, which I.C. Strauss knew at the time was worth its face value.
7. That said representations herein mentioned were made to the plaintiff in the City of Tampa, Florida; that at said time, the plaintiff was a resident of the State of Florida; that he has been a resident of that State ever since; that he has only recently been informed as to what W.B. Wilson's interest was in his father's estate over and above his indebtedness to his father's estate; that he did not ascertain this information until after the executors of the estate of Mrs. Elizabeth Wilson had been discharged as such; that had he found out this information prior to such discharge, he would have brought this proceeding; that all of said representations were made to him in the State of Florida and the plaintiff alleges that the cause of action herein set out arose in the State of Florida, and the determination of the plaintiff's rights in reference thereto should be controlled by the laws of the State of Florida; and the plaintiff alleges that it is provided by the statute law of the State of Florida for the year 1920, volume 2, § 2571, as follows:
"Suits for Personal Injuries. All actions for personal injuries shall die with the person, to-wit: assault and battery, slander, false imprisonment and malicious prosecution; all other actions shall and may be maintained in the name of the representatives of the deceased."
The plaintiff is informed and believes that under the construction of the law of the State of Florida by its highest Court, the cause of action set forth by the plaintiff in this complain survived the death of Elizabeth Wilson.
8. The plaintiff further alleges, upon information and belief that the said I.C. Strauss, the Attorney and Agent of Mrs. Elizabeth Wilson knew at the time he made said representations that said note was worth its face value; he knew approximately what would be coming to W.B. Wilson out of his father's estate, and he knew that it would be approximately Two Hundred Thousand ($200,000.00) Dollars, and the plaintiff further alleges that Mrs. Elizabeth Wilson knew that there would be coming to W.B. Wilson out of said estate around Two Hundred Thousand ($200,000.00) Dollars, but notwithstanding this knowledge, the said I.C. Strauss, Attorney and Agent for Mrs. Elizabeth Wilson willfully, wantonly, and for the purpose, and with the intention of inducing the plaintiff to accept One Thousand ($1,000.00) Dollars for said note, represented to the plaintiff that W.B. Wilson owed his father's estate more than was coming to him, and that he would have absolutely nothing left.
9. The plaintiff now alleges, upon information and belief, that said representations were not true, but on the contrary W.B. Wilson had coming to him out of his father's estate over and above all of his indebtedness to said estate a sum in excess of Two Hundred Thousand ($200,000.00) Dollars, which fact the plaintiff alleges upon information and belief, was known to both I.C. Strauss and to Mrs. Elizabeth Wilson at the time said representations were made, and they knew that the same was unknown to the plaintiff.
10. That as a result of the plaintiff's accepting One Thousand ($1,000.00) Dollars for said note, he has sustained an actual loss of Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars, for which the estate of Elizabeth Wilson should account to him, this actual loss being arrived at as follows: Interest on One Thousand ($1,000.00) Dollars from August 12, 1922, the date of said note, to November 22, 1922, on said thousand dollars amounting to Twenty-two and 22/100 ($22.22) Dollars, and interest on the balance of said note, to wit, One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars from the date of said note August 12, 1922, to November 1, 1928, amounting to Six Hundred Sixty-two and 2/100 ($662.02) Dollars added to the Twenty-two and 22/100 ($22.22) Dollars makes a total of Six Hundred Eighty-eight and 32/100 ($688.32) Dollars added to One Thousand Three Hundred Thirty-eight and 35/100 ($1,338.35) Dollars makes Two Thousand Twenty-six and 57/100 ($2,026.57) Dollars. He has been without the use of this money all of this time, he has been put to the expense of having to employ counsel to bring this action; will be forced to the necessity and expense of being absent from his business for the purpose of attending Court at the trial of this cause, all of which was caused by reason of the wilful misrepresentations made to the plaintiff by the Agent and Attorney of Mrs. Elizabeth Wilson which resulted in the plaintiff being defrauded out of the sum herein alleged that was due him by W.B. Wilson. The plaintiff further alleges, upon information and belief, that after receiving said note, that Mrs. Elizabeth Wilson by and through her said Agent and Attorney collected said note in full from W.B. Wilson, and the plaintiff further alleges that said misrepresentations were made for the purpose of obtaining said note for less than its true value, which value was known to the defendants' intestate, with the intention of realizing its full value from W.B. Wilson and thereby defrauding the plaintiff out of the difference between the thousand dollars paid the plaintiff and the actual worth of said note; that as a result of obtaining said note in the manner herein alleged, the plaintiff alleges that in addition to the loss of Two Thousand Twenty-six and 57/100 ($2,026.57), for which he alleges the estate of Elizabeth Wilson is liable to him and for which said estate received the benefit, he has suffered actual and punitive damages in the sum of Ten Thousand ($10,000.00) Dollars.
Wherefore, the plaintiff demands judgment against the estate of Elizabeth Wilson for the sum of Twelve Thousand Twenty-six and 57/100 ($12,026.57) Dollars, and for the costs of this action. L.D. Jennings and Frank A. Miller, Plaintiff's Attorneys. (Duly verified.)
AFFIDAVITState of South Carolina, County of Darlington.
Personally comes L.D. Jennings who, being sworn, says that he is one of the plaintiff's attorneys in the case of J.R. McEachern, plaintiff, v. John Wilson et al., defendants, pending in the Court of Common Pleas for Sumter County; that on November 27, last, a demurrer in said cause was argued before his Honor Judge Shipp; that shortly after the argument deponent told Judge Shipp that it had been decided to serve an amended summons and complaint, which the plaintiff had the right to do as a matter of law under the statute in such case made and provided; that deponent requested his Honor not to make any order until this could be done, and deponent understood that the request would be granted. Deponent forwarded the amended pleadings to his client in Florida on the next day for verification and on the following Saturday, December 1, notified R.D. Epps, Esq., of counsel for defendants, of the foregoing facts, and inquired of him whether he would accept service of said amended summons and complaint or whether the same should be served on the parties. Mr. Epps said he didn't think I had a right to serve amended pleadings after the remurrer had been argued and he preferred not accept service but that I could serve the parties. Immediately upon receipt of the papers from Florida I put them into the hands of the deputy sheriff of Sumter for service and this was on December 3, within the 20 day period for serving amended pleadings as a matter of legal right. Deponent has since been informed by said deputy that service was not effected until the 6th instant for the reason that the parties could not be found and that he served said papers on the 6th instant. The order aforesaid therefore takes the plaintiff by surprise, was obtained by mistake, and deponet believes, and should be vacated.
L.D. JENNINGS.
Sworn to before me December 7, 1928. [Seal] F.L. MILLER, Notary Public, S.C.
Messrs. Epps Levy, and Lee Moise, for appellants, cite: As to demurrer: 80 S.C. 32; 108 S.C. 258; 148 S.C. 125. Dismissal of case: 18 C.J., 1207; 114 S.C. 491. Foreign statute is a matter of fact, and not an allegation of law: 36 Cyc., 1240. Where same not pleaded common law of forum presumed to obtain: 81 S.C. 317; 92 S.C. 423; 81 S.C. 24. All parties bound by construction put on complaint in passing on a demurrer, not appealed from: 90 S.C. 229; 108 S.C. 254.
Messrs. L.D. Jennings, and Frank A. Miller, for respondent, cite: As to right to amend: 16 S.E., 616; 24 S.C. 274; 30 S.C. 574; 37 S.C. 341; 56 S.C. 30; 30 S.C. 564; 63 S.C. 307; 80 S.C. 215; 81 S.C. 574; 82 S.C. 1; 84 S.C. 267; 91 S.C. 51; 103 S.C. 214; 112 S.C. 71. Cases distinguished: 80 S.C. 32; 108 S.C. 258; 90 S.C. 229; 40 S.C. 125; 114 S.C. 491.
January 22, 1930. The opinion of the Court was delivered by
On the 9th of November, 1928, the plaintiff, J.R. McEachern, commenced an action in the Court of Common Pleas for Sumter County, against John Wilson, Mary Wilson, and G.A. Lemmon, as trustees of the estate of Mrs. Elizabeth Wilson, deceased, based upon an alleged tort committed by the said Mrs. Elizabeth Wilson, deceased, during her lifetime, through her alleged agent, I.C. Strauss, her attorney; it being alleged, in plaintiff's original complaint, that the plaintiff by misrepresentation and fraud had been cheated out of the sum of $2,036.57 by inducing the plaintiff by means of such misrepresentation and fraud to accept a compromise settlement of a certain promissory note, and asked damages in the sum of $10,000. The defendant demurred to the complaint upon the following grounds:
"I. The complaint does not state facts sufficient to constitute a cause of action, in that the defendants are sued as trustees of the estate of Elizabeth Wilson; but no facts are alleged to show that the defendants as trustees are liable for any tort committed by Mrs. Elizabeth Wilson, and there are no facts alleged to show any liability on the part of the defendants as trustees.
"II. The complaint does not state facts sufficient to constitute a cause of action in that the said cause of action set forth in the complaint is one sounding in damages for an alleged tort on the part of Mrs. Elizabeth Wilson now deceased; whereas a cause of action of this nature does not survive the death of the alleged tort feasor."
Pursuant to notice the demurrer was heard by his Honor, Judge S.W.G. Shipp, who, after hearing argument of counsel and after due consideration, sustained the demurrer, and thereafter issued the following order thereon, dated December 4, 1928, and filed with the Clerk of Court December 6, 1928:
"This matter comes up by way of demurrer duly noted and argued before me at my chambers, at Bishopville, S.C. on Tuesday, November 27th, 1928.
"Both grounds of demurrer were based upon the allegation that the facts stated in the complaint were not sufficient to constitute a cause of action. First, in that the defendants are sued as trustees of the estate of Elizabeth Wilson without there being alleged any facts to show any trust created in the defendants or to show that the defendants as trustees would be liable for any tort committed by Mrs. Elizabeth Wilson, deceased, nor were there any facts alleged to show any liability on the part of the defendants as trustees; and second, said cause of action being one sounding in damages for an alleged tort on the part of Mrs. Elizabeth Wilson now deceased, such cause of action does not survive the death of the alleged tort feasor.
"I. The first ground of the demurrer is sustained. There are certainly no facts alleged in the complaint which would show that the defendants as trustees are liable for any obligations of the estate of Mrs. Elizabeth Wilson, deceased. The legal representatives of an estate are either the executors or the administrators, as the case might be, and there would have to be allegations of facts showing legal liability on the part of the trustees before an action could be maintained against them.
"II. The second ground of the demurrer is also sustained. The cause of action set forth in the complaint is plainly one sounding in damages for an alleged tort on the part of Mrs. Elizabeth Wilson, now deceased. A cause of action of this nature does not survive the death of the alleged tort feasor. Adams v. Haselden, 112 S.C. 32, 99 S.E., 762; Cline v. Southern R. Co., 113 S.C. 440, 102 S.E., 641.
"The exception to the general rule does not obtain in this case because the action is not one for the recovery of property which has enriched an estate by the tort of the deceased, nor is it an action to recover the value of such. Sustaining the second ground of demurrer amounts to a dismissal of the complaint and it is so ordered."
December 6, 1928, the plaintiff served an amended summons and complaint, which included the original defendants and also Mary Wilson, individually. In the original summons and complaint Mary Wilson was made a defendant as trustee but not individually. December 7th the plaintiff served notice of a motion to be made before Judge Shipp on the 11th of December, 1928, "for an order vacating the order issued herein December 4, 1928, on the ground that the same was obtained through surprise and taken by mistake." The motion was based upon an attached affidavit of Mr. Jennings, of counsel for the plaintiff, and upon the pleadings and proceedings in the case. Upon hearing the motion December 11, 1928, his Honor, Judge Shipp, issued the following order, refusing to vacate his former order:
"A demurrer was interposed by the defendants in the above case, and an order was made by me on December 4th, sustaining the same and dismissing the complaint. This order was filed on December 6th, with the Clerk of Court for Sumter County.
"The plaintiff has now made a motion to have this order set aside on the ground of surprise and mistake.
"After hearing argument for and against the motion, I am of the opinion that the said order was proper, and the same is hereby affirmed. If the plaintiff has a new cause of action against the defendants, there is nothing to prevent him from bringing a suit setting up such new cause, but the original cause sounding in tort has been dismissed on the ground stated in my original order, and this must stand unless reversed by proper authority."
December 12, 1928, the plaintiff served upon defendants' counsel a notice, as follows:
"You are notified that unless you answer or otherwise plead to the amended complaint heretofore served in this case within twenty days after service thereof, the plaintiff will proceed to take judgment in said cause by default."
The defendants thereupon served the plaintiff's attorneys with notice of a motion to be made before his Honor, C.J. Ramage, presiding judge, for an order dismissing the amended summons and complaint. Upon hearing the motion his Honor, Judge Ramage, refused the same, and passed the following order, dated June 3, 1929:
"This matter came on to be heard before me upon a motion of the defendants to dismiss the amended summons and complaint in the above stated case, upon three grounds, which were stated in the notice.
"After hearing argument for and against said motion, and after carefully considering the same, I hold that the motion should not be granted. I am refusing this motion without prejudice to the rights of defendants to move to make more definite and certain, to demur or to answer; they may be either, any two or all three, as they may be advised; I am simply refusing to dismiss the complaint in my discretion on the grounds made but defendants may treat this as a complaint that they may attack by motion, to make more definite and certain, by demurrer, or by answer, and the adoption of any remedy shall not preclude the other.
"In other words, defendants or any of them, may treat this complaint just as they might any other complaint that had just been served."
From this order the defendants have appealed to this Court, upon exceptions which as stated by counsel, raise the following questions:
(1) Was it the duty of his Honor, Judge Ramage, to dismiss the amended complaint, which was served after his Honor, Judge Shipp, had sustained a demurrer and dismissed the original complaint?
(2) Should his Honor, Judge Ramage, have dismissed the amended complaint on the ground that the same attempted to set forth the same cause of action which had already been dismissed by demurrer by his Honor, Judge Shipp?
(3) Should his Honor, Judge Ramage, have dismissed the summons and complaint as to the new defendant, Mary Wilson, who had been brought in as a new party without the permission of the Court?
The questions will be considered jointly.
The respondent takes the position that he proceeded under the provisions of Section 435 of Volume 1, of the Code, and that under that section no order of the Court dismissing the complaint that was passed within 20 days after the service of the original summons and complaint could deprive the plaintiff of his statutory right to amend his complaint, as a matter of course, any time within 20 days from the date of the service of the original summons and complaint. The section of the Code to which reference is made is as follows:
"Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time within twenty days after it is served, or at any time before the period for answering it expires; or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the Court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be docketed; and if it appear to the Court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the Court may seem just. In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, the Court shall, unless it appear that the demurrer was interposed in bad faith, or for purposes of delay, allow the party to plead over upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth subdivision of Section 401, the Court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned."
We do not understand that this section of the Code was intended to deny to judges the power to hear and pass upon a demurrer until after the 20-day period has expired, where the parties appear before the judge for the purpose of having the demurrer heard. The demurrer came up for a hearing before Judge Shipp pursuant to notice served by counsel for the defendants, and counsel for plaintiff, pursuant to said notice, appeared at the hearing. So far as the record discloses, the hearing on the demurrer was regular in every sense. So far as the record discloses, no request was made by the plaintiff for a postponement of the hearing in order that the plaintiff might have time to exercise his rights under this section of the Code, and it was not until after his Honor, Judge Shipp, made his ruling sustaining the demurrer, that any question was raised as to plaintiff's rights to amend his complaint in accordance with the provision in the section of the Code referred to. In our opinion, when Judge Shipp made his ruling and issued his order on the demurrer adverse to the plaintiff's contention, the plaintiff's remedy was an appeal from the order so issued, and, having failed to appeal, the matter is res adjudicata, and the plaintiff now has only such rights as to the matters involved as the said order allows. In the second order of Judge Shipp, refusing to vacate the first order, which we think was a proper order under the facts of the case, his Honor called attention to the fact that, if the plaintiff has a new cause of action against the defendants, there is nothing to prevent him from bringing a suit setting up such new cause. We may state that, while we do not consider it necessary to discuss the merits of the order of Judge Shipp sustaining the demurrer, in our opinion the order was proper. Heape v. Berkeley County, 80 S.C. 32, 61 S.E., 203; Owens v. A.C.L. Corp., 108 S.C. 258, 94 S.E., 15. In any event, if the plaintiff was not satisfied with the order, his remedy was by appeal, and, having not appealed, the order is now the law of this case. There is no provision in the order permitting the plaintiff to serve an amended complaint, and therefore plaintiff's amended complaint was not allowable. Brewton v. Shirley, 93 S.C. 365, 76 S.E., 988; Drennen v. Brown, 114 S.C. 491, 103 S.E., 889.
In the order refusing to dismiss the said amended complaint his Honor, Judge Ramage, seems to have regarded the amended complaint as a new action, and stated that the defendants might treat "this complaint just as they might any other complaint that had just been served."
The paper in question is titled an amended complaint, counsel in their agreed statement state that it is amended complaint, and we think it was so intended by the plaintiff. It attempted to set forth the same cause of action which had been dismissed by Judge Shipp in sustaining the demurrer. Allowing the defendants to treat it as any other complaint just served, as provided in the order of Judge Ramage, was simply permission to the defendants to do that which under the law they had a right to do, but nothing more. As we view the case, the defendants' motion to dismiss should have been granted. The naming of Mary Wilson, individually, as a defendant, as well as trustee, did not place the plaintiff in any stronger position.
The order of Judge Shipp, which is the law of the case, did not grant this, and the motion to dismiss, in our opinion, should have been granted.
The defendants' exceptions are sustained, and it is the judgment of this Court that the order of his Honor, Judge Ramage, be reversed and plaintiff's amended summons and complaint dismissed.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE and STABLER concur.