Brown v. Easterling , 59 S.C. 472 ( 1901 )

March 13, 1901. The opinion of the Court was delivered by This action came on for hearing before his Honor, Judge Townsend, at the November term of the Court of Common Pleas for the county of Barnwell, in the year 1899. At the hearing, the defendant demurred to the complaint upon the ground that the facts stated therein were not sufficient to constitute a cause of action. The demurrer was sustained by an order bearing date 21st November, 1899, in which it was further ordered, "that the plaintiff have leave to amend her complaint as she may be advised, and that the said amended complaint be served upon the defendant within twenty days from this date (21st November, 1899), and that the defendant have twenty days thereafter in which to serve her answer thereto." The amended complaint was not served within the time allowed for that purpose; and, so far as appears from the record before us, no further action was taken in the matter until the 23d of February, 1900, more than two months after the expiration of the time limited for the service of the amended complaint. On that day the plaintiff gave notice of a motion, based upon certain affidavits, which are set out in the "Case," and upon the pleadings and proceedings in the cause, that she would, at a time and place stated, move "for an order allowing the plaintiff to serve her amended complaint on the defendant, and such other and further relief as may be just and proper." These affidavits referred to in the notice were made by J.J. Brown, Esq., the attorney of record for the plaintiff, and by Robert Aldrich, Esq., who had been brought in as assistant counsel for the plaintiff, and should be incorporated by the Reporter in his report of the case. This motion was heard on said affidavits and the pleadings and proceedings in the cause by the honorable J.H. Hudson, while holding a special term of the Court of Common Pleas for the county of Barnwell as a special Judge, duly appointed for that purpose, and "after hearing Messrs. Aldrich and Brown for the motion and Mr. Patterson contra," he granted an order bearing date the 2d March, 1900, "that the plaintiff have five days from this date to serve her amended complaint on the defendant, and that defendant have twenty days from the date of service to serve her answer thereto."

From this order defendant appeals upon the following grounds: "Because his Honor, Judge J.H. Hudson, erred in allowing the plaintiff further time to serve her amended complaint herein; whereas, his Honor should have held that the order of Judge D.A. Townsend, who granted the order allowing such amended complaint to be served, fixed the time in which said amended complaint should be served, and the time having expired, his Honor, Judge Hudson, was without authority to extend the same." The grounds upon which the order appealed from was granted do not appear in the "Case;" but if we are to judge from the argument submitted here, it is now sought to sustain such order upon the grounds: 1st. Because of the analogy afforded by certain decisions of this Court as to the right of a succeeding Judge to extend the time allowed to put in security for costs by an order of his predecessor. 2d. Under the provisions of sec. 195 of the Code.

The cases cited to sustain the first ground are, first,McMillan v. McCall, 2 S.C. 300, in which it was held by a divided Court — the late Chief Justice Moses dissenting — that where the plaintiff had been required by an order of the Court, made at February term, 1870, to give security for costs on or before the 1st day of May, 1870, or be nonsuited, which order had not been complied with, the Court could, at the succeeding June term, make an order, so modifying the previous order as to allow the plaintiff further time, until the 1st day of July, 1870, to put in security for costs. But in the subsequent case of Cummings v. Wingo, 31 S.C. 427, the decision in McMillan v.McCall was expressly disapproved and must be regarded as overruled. See, also, the subsequent case of McKellar v.Parker, 29 S.C. 237.

The next case cited is Williams, Black Co. v. Conner,14 S.C. 621, which — as will be seen by what is said of it, inCummings v. Wingo, supra, as well as in Bomar v. A. S.Railroad Co., 30 S.C. 450 — is not in point here; and certainly the case of Bomar, which is likewise cited by counsel for respondent, does not sustain his position — rather the contrary. All of these cases, exceptMcMillan v. McCall, which has been practically overruled, establish or recognize the doctrine that where one Circuit Judge has granted an order requiring the plaintiff to put in security for costs, on or before a day specified, or be nonsuited, and the party fails to put in the required security for costs within the time limited, the order then becomes a final order, upon which judgment of nonsuit may be entered; and that in such a case neither the same nor any other Circuit Judge has the power to so modify the order as to allow the plaintiff further time to put in security for costs; and the only reason why this was allowed in the case of Williams,Black Co. v. Connor, supra, was because the original order, in that case, did not direct that the plaintiff, if he failed to put in security for costs within the time limited, should be nonsuited, and, therefore, the order was not final, as it did not authorize the entry of judgment of nonsuit. It seems to us, therefore, that the analogy drawn from those cases, is, if anything, against rather than in favor of the plaintiff here. For, in this case, when the demurrer was sustained, that was an end of the case, and the defendant could have entered judgment thereon, unless the plaintiff availed herself of the privilege, granted by Judge Townsend's order, of serving an amended complaint within the time limited for such purpose by said order; and having failed to do so, the defendant could, upon the expiration of such time, have entered judgment upon the demurrer; and hence the order became a final order, which no other Circuit Judge had any power to modify.

If it should be contended that the plaintiff was entitled to the relief which she obtained by the order appealed from under the provisions of sec. 348 and 349 of the Code, there are two conclusive answers to such a contention. 1st. The provisions of those two sections apply only to cases in which a party has failed or omitted to take any step towards perfecting his appeal, within the time prescribed for such purpose, when he may, under sec. 348, apply to the Circuit Judge "who heard the cause," or to any Justice of the Supreme Court, to have such time "extended." But here the plaintiff was not seeking to repair any default in taking any step towards perfecting herappeal, for she did not appeal from the order of Judge Townsend. 2d. That section only authorizes such an application to the Judge "who heard the cause," or to one of the Justices of the Supreme Court; and this application was not made either to the Judge who heard the cause, Judge Townsend, or to a Justice of the Supreme Court. As to sec. 349, that applies only to the Supreme Court. But even if the provisions of this sec. 348 could be applied to this case, by analogy, there was still no authority for granting the order in question. In Stribling v. Johns, 16 S.C. 112, recognized in the subsequent case of Tribble v. Poore, 28 S.C. at page 570, it was held that a motion for an extension of the time prescribed for doing any act necessary to perfect an appeal must be made before the expiration of the time limited; and here the motion was not made, nor even noticed, until more than two months after the expiration of the time allowed the plaintiff to serve her amended complaint.

The next inquiry is whether the second ground upon which respondent's counsel seek to sustain the order appealed from, can be sustained, to wit: that the order was authorized by the provisions of sec. 195 of the Code. That section reads as follows: "The Court may likewise, in its discretion and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or by an order enlarge such time; and may also, in its discretion and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, and may supply an omission in any proceeding," c. — the balance of the section not being pertinent to this inquiry. It is clear from this language that the object of this section was to relieve a party from two classes of defaults. 1st. Those which arise from a failure to file an answer or to do any other act within the time limited by the Code. 2d. To relieve a party from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect, or to supply any omission in any proceeding. It is quite certain that the first branch of the section has no application to this case, for there was no failure to do any act within the time limited by the Code. And it is, to say the least of it, doubtful whether the second branch of the section applies to this case, for it does not seem to be an application to be relieved from any judgment, order or other proceeding taken against the plaintiff through her mistake, inadvertence, surprise or excusable neglect, or to supply any omission in any proceeding. Her application relates only to that portion of the order of Judge Townsend requiring her to serve her amended complaint within twenty days after the date of his order. She certainly does not desire and did not move for any reversal of that order; for her sole purpose was to obtain further time within which to comply with the terms of said order. It is, therefore, more than doubtful whether sec. 195 has any application to the case. But assuming, for the sake of argument only, that it does apply, we will proceed to inquire whether she has brought herself within the provisions of that section. The order in question was granted in open Court, after argument of counsel on both sides was heard; and it is very difficult to conceive how counsel can claim to have been ignorant of the terms of the order. Indeed, the only one of the terms of the order signed by Judge Townsend, of which counsel claimed to have been ignorant, was that requiring the amended complaint to be served within twenty days from the date of the order; and even if that provision had not been inserted in the order, the plaintiff would nevertheless have been required to serve her amended complaint within twenty days. Rule 63 of the Circuit Court reads as follows: "In all cases where a motion shall be granted on payment of costs, or on the performance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith shall have twenty days for that purpose, unless otherwise directed in the order,c." — the balance of the rule not being pertinent to the present inquiry. So that even if counsel did not hear the order read, or did not see it after it was signed, the law assumes that they knew that the amended complaint should be filed in twenty days. In addition to this, we understand that the public records are notice to the world, and even where a party has not, in fact, inspected such records, and has no actual knowledge of what they contain, the law presumes he has notice of their contents, and he is held to be effected by such notice. If this be so, how much more should a party and his attorney be held affected with notice of any order or other proceeding taken in the very case in which the question of notice arises. So that, assuming that the counsel for plaintiff did not actually know that the order of Judge Townsend required the plaintiff to serve her amended complaint within twenty days, the law conclusively presumes that they had notice of all the terms of that order, and they must be held bound by such notice. Most especially should this be so in the present case, for it is stated in the affidavit of Mr. Brown that the Circuit Judge refused to sign the order as drawn by plaintiff's attorney, and did sign the order as drawn by defendant's attorney, which shows that there must have been some difference between counsel as to the terms of the order; and this should have drawn the attention of plaintiff's attorney to the terms of the order which was signed.

The facts stated in the affidavits of plaintiff's attorneys for the purpose of accounting for the delay in preparing and serving the amended complaint, after the adjournment of the Court at which the order of Judge Townsend was granted, will not avail the plaintiff; for if these attorneys found that they could not prepare and serve the amended complaint within the time prescribed by the order of Judge Townsend, as well as by the rule of Court above referred to, their remedy was to apply to Judge Townsend before the twenty days expired for an extension of the time allowed; and this they failed to do. It seems to us, therefore, that even if the provisions of sec. 195 of the Code apply to this case, the plaintiff has failed to bring herself within the provisions of that section.

If it should be said that the question whether the plaintiff was entitled to relief from that provision of the order of Judge Townsend which required her to serve her amended complaint within twenty days, upon the ground of mistake, inadvertence, surprise or excusable neglect, was a question of fact exclusively for the Circuit Judge, the obvious answer is that there is nothing whatever in the "Case" which even tends to show that Judge Hudson ever considered or decided, as matter of fact, that there was any such mistake, inadvertence, surprise or excusable neglect; and we certainly cannot assume that he made any such decision; especially when we are unable to find any evidence whatever to sustain such a conclusion.

The judgment of this Court is, that the order appealed from be reversed.

MR. JUSTICE GARY concurs in the result.