Melton v. Withers , 2 S.C. 561 ( 1871 )

The opinion of the Court was delivered by

Willaed, A. J.

The appeal is from a decree sustaining a demurrer to a supplemental bill, and dismissing the bill. The supplemental bill alleges the exhibiting of the original bill by the complainant, S. W. Melton, as administrator de bonis non of J. D. Goore, who died intestate, and also as administrator pf the widow of intestate, who, together with B. F. Withers, administered, in the first instance, the intestate estate, and also in right of his wife, who is joined as complainant, a daughter and distributee of intestate, against the personal representatives of B. F. Withers, who, at the death of the widow, became surviving administrator of the first intestate estate; the other distributees are also joined as defendants.

The bill alleges a breach of trust against the surviving administrator in appropriating the money of his intestate to his own use, and prays an account, &c.

The supplemental bill further charges that the surviving administrator, B. F. Withers, employed the moneys of the estate in mercantile business transacted by him under a co-partnership with PI. F. Adickes. It charges Adickes with notice of the breach of trust, and makes him a party defendant with a prayer for relief against him.

All the defendants demurred. The grounds of demurrer are reducible to three propositions: first, that the supplemental bill is informal; second, that the matters ^alleged arose before the filing of the original bill; third, that it is multifarious.

The Circuit Judge sustained the demurrer on the latter ground. The informality complained of is, that the bill is not verified, and was not filed with the leave of thé Court.

The bill seeks-relief, but does not ask for any preliminary order, and is not required to be verified. — 1 Daniel’s Chancery Pr., 395 ; McElwee vs. Sutton, 1 Hill’s Ch., 33.

The objection that leave for filing Was not obtained is not, in itself, sufficient ground of demurrer. If, however, it appears by the supplemental bill that there was no ground for obtaining leave to file, advantage may be taken of this fact on demurrer. If, upon considering this ground of appeal, it should appear that reason existed for filing the supplemental bill, this Court will not dis-miss it.

The questions remaining to be considered are: First, whether the supplemental bill is defective by reason of the fact that the matters brought forward by it occurred before the filing of the original bill; and, second, whether it is multifarious. Strictly speaking, a supplemental bill relates to matters occurring after bill filed, as changes of interest pendente lite, &c. (2 Dan. Ch. Pr., 1594.) Events occurring after bill filed were not subjects of amendment; they were therefore allowed to be brought forward by supplemental bill. (Stafford vs. Howlett, 1 Paige, 200.) As to matters occurring before the filing of the bill, the proper course is to amend the bill, and on such amendment new parties may be added, in order to render the decree more effectual. But where the bill cannot be amended, as, for instance, where the case has proceeded too far, a supplemental bill, or, perhaps, more accurately speaking, a bill in the nature of a supplemental bill, will be allowed. (Mitford’s Pleadings, 49.) In such ease, the supplemental bill is an addition to the original bill, and becomes part of it, so that the whole bill is taken as one amended bill. (2 Dan. Ch. Pr., 1611, note 3, and cases there cited.)

In the present case, it would appear that the supplemental bill had been filed before demurrer, plea, or answer to the original bill. In such a case, the difference between an amended and a supplemental bill is nominal merely, as the whole case is open. As the defendant’s objection did not distinctly raise before the Circuit Court the objection that the new matters should have been brought forward by amendment, instead of by a supplemental bill, we are not bound to consider it. In that case the objection, if sustained, might have been at once obviated by a mere verbal change in the bill. The objection that was in fact taken, viz, that the matters arose before the original bill was filed, is not fatal to a supplementary bill.

The question of multifariousness has béen ruled by us in Ragsdale vs. Holmes, (1 S. C., N. S., 91.) We there held that, when a breach of trust is alleged, it is competent to unite, as a defendant, a third party in possession of assets under such breach, with notice of the trust.

The decree of the ■ Circuit Court must be set aside, and the demurrer overruled, and the ease will be remanded to the Circuit Court for further proceedings.

Wright, A. J., concurred. Moses, C. J., absent at hearing.