Sanders v. Sanders , 31 S.C. 604 ( 1889 )

Under motion to vacate a judgment by default and for leave to answer the complaint, the Circuit Judge granted the motion, “the answer served with the motion papers herein being allowed to stand as the defendant’s answer in the action, with leave to the said defendant to serve an amended answer within 30 days,” if so advised, and upon his filing an undertaking to pay the amount finally recovered. The undertaking was filed, but no answer or amended answer was served. Eight months afterwards plaintiff served on defendant’s attorney a reply to the counter-claim contained in the answer of defendant, attached to the motion papers. This reply was promptly returned as not served in time. The Circuit Judge (Fraser) ruled that the reply was not served in time, and therefore that the counter-claim was admitted.

On appeal by plaintiff, Mr. Justice McGowan held that the-answer as served with the motion papers having been ordered to stand as defendant’s answer, no further service was required, and therefore the ruling of Judge Fraser was correct. Mr. Ci-iiee Justice Simpson concurred in the result. Mr. Justice Mc-Iver dissented from the view taken in the opinion, and thought the answer should have been served, but concurred in the result upon the ground “that the judgment now appealed from has already been affirmed by this court under a previous appeal, in which the question now presented might have been made.” See Sanders v. Sanders, 30 S. C., 207. Judgment affirmed,