Shull v. Bradford , 58 S.C. 573 ( 1900 )

September 17, 1900. The opinion of the Court was delivered by For a proper understanding of the questions presented by this appeal, it will be necessary to make a brief statement, derived from the record before us, of the several steps taken in this case, from its inception up to the time of the rendition of the decree from which this appeal was taken. It seems that the plaintiff originally brought an action against Frances T. Caughman for the recovery of real estate — a lot in the town of Lexington — which resulted in a verdict for defendant. Thereupon the said plaintiff, as permitted by the statute, brought her second action against the same defendant for the recovery of the same real estate. After the issues in the second action were joined and before trial, the action abated by the death of the said Frances T. Caughman, on or about the 18th day of May, 1898. Thereupon the plaintiff, upon an affidavit stating that the said Frances T. Caughman had died, leaving a will, which had been duly admitted to probate, wherein one S.P. Wingard was duly appointed executor, but had declined to qualify as such, and that J.A. Muller had applied for and obtained letters of administration, with the will annexed, upon the estate of said Frances T. Caughman, applied for and obtained an order of Court substituting the said J.A. Muller as administrator as aforesaid, as a party defendant to the said action. The case then came on for trial before his Honor, Judge Ernest Gary, who upon the motion of counsel for defendant, sustained a demurrer to the complaint, granting leave, however, to the plaintiff "to amend the order of substitution, making the devisee under the last will and testament of Mrs. Frances T. Caughman, a party defendant, provided such amendment be served upon defendant's counsel within twenty days from the rising of the Court." This order bears date 5th October, 1898. On the 20th October, 1898, plaintiff's attorneys served Mrs. Julia A. Bradford with a notice, entitled in the case of Sue A. Shullv. Frances T. Caughman, and addressed to Mrs. Julia A. Bradford, informing her: 1st. That the above stated action is now pending in the Court of Common Pleas for said county, and that the original complaint and answer are on file in the office of the clerk of the Court. 2d. That after issue joined, the said Frances T. Caughman died, leaving a will, which has been duly admitted to probate, and is now on file in the office of the probate court. 3d. That by the order of 5th October, 1898, his Honor, Judge Gary, required that the devisee under said will be made a party defendant to said action. 4th. That you, the said Julia A. Bradford, are sole devise under said will. 5th. That by virtue of said order you are now the party defendant to said action. And on the 22d October, 1898, the plaintiff served on the said Julia A. Bradford, and on Andrew Crawford, Esq., who had been the attorney for Mrs. Frances T. Caughman, and had filed her answer as such to the original complaint, copies of a paper, styled in the "Case" an "Amended Complaint," in which the allegations of the original complaint are stated, with the further allegations that the said Frances T. Caughman had died, leaving a will, in which the said Julia A. Bradford is made sole devisee, and that by the order of 5th October, 1898, above referred to, she, the said Julia A. Bradford, as sole devisee, was made a party defendant. Thereupon Mr. Crawford gave notice of a motion (stating therein that he appeared for the purpose of this motion only), "for an order setting aside the service of the paper styled ``Amended Complaint,' in re. Mrs. Sue A. Shull v. Mrs. Frances T. Caughman," on certain grounds set forth in the notice, which need not be stated here as they are all set out in the decree of Judge Aldrich, which will be reported. This motion was heard by his Honor, Judge Aldrich, who rendered a decree refusing the motion; and from that decree the defendant appeals upon the several grounds set out in the record, which will likewise be reported.

We do not propose to consider these grounds seriatim, but rather to consider what we understand to be the real, practical question raised by this appeal, to wit: whether the plaintiff has succeeded in substituting the appellant — Mrs. Julia A. Bradford — as the defendant in the place of Mrs. Frances T. Caughman, deceased, the original defendant in the action. In Dunham v. Carson, 42 S.C. 391, it was suggested that the proper practice in a case of this kind is, for the party who desires to continue an action against the representatives in interest of a deceased party, to make an ex parte application, based upon a proper showing by affidavit, for a rule against the person sought to be brought in, requiring him to show cause why the action should not be continued against him in the character ascribed to him, and upon default in showing good cause, the action will be so continued. Now, while it is quite true that the mode adopted in this case of bringing in Mrs. Bradford, the alleged devisee of the original defendant, Mrs. Frances T. Caughman, as a party defendant in this action, was not precisely that suggested in Durham v. Carson, yet, as was well said by Mr. Justice Pope, in deLoach v. Sarratt, 55 S.C. at page 275, "That while the form adopted for the purpose of procuring E.O. Sarratt [Julia A. Bradford] to come in and contest the fact of his being such a successor in interest, is not quite in the shape of a rule to show cause, yet, practically, it is a rule to show cause." So here we may say that the mode adopted in this case of substituting Mrs. Bradford, as devisee of the land in question, as party defendant, in place of the original defendant, Mrs. Caughman, afforded all the practical results of a rule to show cause. By the order of Judge Gary, of the 5th of October, 1898, affirmed by this Court, in Shull v. Caughman, 54 S.C. 203, the plaintiff was authorized to substitute the devisee as party defendant, in place of Mrs. Caughman, deceased, and by the notice served on Mrs. Bradford on the 20th of October, 1898, above referred to, she was notified of the said order, that she was the devisee under the will of Mrs. Caughman, and that, by virtue of said order and said will, she is now the party defendant in this action. This, it seems to us, without more, would have been sufficient to bring the appellant before the Court as a party defendant to the action, with the privilege to come in and answer, either admitting or denying that she was the devisee as alleged, just as in Durham v. Carson, supra. But when, in addition to this, both she and the gentleman who represented her as counsel in this appeal, were served on the 22d of October, 1898, with the paper styled in the "Case" as an "Amended Complaint," in which the original complaint was set forth, with the further allegation of the death of the original defendant, leaving a will whereby she is made the sole devisee, together with the further fact that she as such devisee, has been, by the order of the Court, substituted as defendant in the action, it seems to us that all the practical results flowing from a formal rule to show cause, have been effected. We think, therefore, that the mode adopted in this case of bringing the appellant before the Court, as a party defendant, while not precisely that which has been suggested by this Court as the proper mode, is substantially sufficient.

We agree with the Circuit Judge, that there was no ground for setting aside the service of the paper styled "Amended Complaint." The fact of service is not denied; but the whole ground of objection seems to be that there was no authority for the service of such paper. That, however, even if well founded, would afford no ground for setting aside the service of the paper. But we are not prepared to admit that there was no authority for the service of the paper. The order of Judge Gary certainly required the service of same paper — the amended order of substitution — whereby the devisee of Mrs. Caughman, instead of her administrator with the will annexed, should be made a party defendant, the manifest object of which was to inform the devisee that she had been made a party defendant. The paper served, though called an "Amended Complaint," effected that object, though, perhaps, it contained other statements, setting out in detailed form how the appellant came to be made a party defendant, which, possibly, may have been unnecessary.

The point raised by one of the exceptions, that there was no evidence that the appellant was the devisee of Mrs. Frances T. Caughman, is premature, and the appellant, when she comes to answer (for which time will be allowed her) may, if so advised, raise that issue.

The judgment of this Court is, that the decree and order appealed from be affirmed, with leave to appellant to answer at any time within twenty days after she has written notice of the filing of the remittitur in this case.