Shull v. Caughman , 54 S.C. 203 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Gary.

The appeal herein is from an order of his Honor, Judge Gary, which, together with appellant’s exceptions, will be set out in the report of the case.

1 2 3 We will first consider whether there was error on the part of the presiding Judge in refusing the motion for an order of nonsuit. Rule XVIII. of the Circuit Court contains the following provisions: “A motion for a nonsuit must be reduced to writing by the moving counsel, or by the stenographer, under the direction of the Court, stating the grounds of the motion.” Upon appeal to this Court, the party who made the motion in the Circuit Court cannot rely upon any grounds except those upon which the motion was made in the Circuit Court. Graham v. Seignious, 53 S. C., 132. Although the áppellant did not comply strictly with this requirement, still, it sufficiently appears in his argument on circuit, that the motion was based on the ground that the heirs, or devisees, if there was a will, and not the adminis - trator, were the proper parties defendant. Section 165 of the Code is as follows: “The defehdant may demur to the complaint, when it shall appear upon the face thereof either: 1. That the Court has no jurisdiction of the person of the defendant, or the subject of the action; or 2. That the plaintiff has not legal capacity to sue; or 3. That there is another action pending between the same parties for the same cause; or 4. That there is a defect of parties, plaintiff or defendant; or 5. That several causes of action have been improperly united; or 6. That the complaint does not state facts sufficient to constitute a cause of action.” The objection urged by the appellant should properly have been made by demurrer, under subdivision 4 of said section of the Code. Section 169 of the Code is as follows: “If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the Court, and the objection that the complaint does not state facts sufficient to consitute a cause of action.” The case of Mickle v. Construction Co., 41 S. C., 394, and the cases therein cited, show that the objection to the complaint, by what is called an “oral demurrer at the trial,” comes too late when it arises under subdivision 2, hereinbefore mentioned. For reasons equally as strong, an objection, properly arising under subdivision 4 of said section, cannot be urged upon a motion for a nonsuit. This principle is sustained also by the cases of Dawkins v. Mathis, 47 S. C., 64, and Jennings v. Parr, 51 S. C., 191. The appellant in his exceptions relies upon other grounds, but as they were not presented when he made the motion for nonsuit, and the presiding Judge did not rule upon them, they will not be considered. We will next consider whether the presiding Judge committed error in refusing to dismiss the complaint. It does not appear upon what ground the appellant moved to dismiss the complaint, unless, by inference, it was on the ground upon which he made the motion for a nonsuit. If this be the case, there is no provision of the Code, nor any law in this State, allowing a defendant to make a motion to dismiss a complaint, on the ground that there is a defect of parties defendant.

4 The last question for consideration is, whether the Circuit Judge erred in granting the plaintiff leave to amend the order of substitution by making the devisee under the will of Mrs. Caughman a party defendant. Section 142 of the Code provides as follows: “No action shall abate by death, marriage, or other disability of a party * * * if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the Court, on motion, at any time within one year thereafter, or after-wards, on a supplemental complaint, may allow the action to be continued by or against his representative in interest.” It was to carry into effect this provision that the Circuit Judge amended his first order of substitution. The first order had been granted by him at that term of the Court, and, if he had seen fit, he could have withdrawn it altogether from the files, and passed another order in the case. In the case of State v. Fullmore, 47 S. C., 34, the Court says: * * * “It is scarcely necessary to cite authorities to sustain the principle that the presiding Judge was not in error in modifying his first order in such manner as he saw fit.” The Court then quoted with approval the language of Mr. Black, in volume 1, section 153, of his work on Judgments as follows : “The authorities all hold that a Court has plenary control of its judgments, orders and decrees during the term at which they are rendered, and may amend, correct, modify or supplement them, for cause appearing, or may, to promote justice, revise, supersede, revoke or vacate them, as may, in its discretion, seem necessary * * .*” Instead of being error to correct the order of substitution, it would have been against the spirit of section 142 not to have made such correction.

Order affirmed.