White v. Harby

March 21, 1935. The opinion of the Court was delivered by In the opinion of Mr. Justice Carter the facts, orders, and motions are so clearly set out that it is useless to rehearse them here. After much study and deliberation, I am reluctantly forced to the conclusion that Judge Mann was in error in this case, and that the Court ought to reverse his order.

It is observed that no time limit is fixed in the order of Judge Dennis. If respondents wished a time limit fixed in his order, no doubt Judge Dennis would have inserted it in the first instance, or would have refused to have done this. If at any time afterwards respondents desired a time limit to be fixed, a subsequent motion could have been made by them for the fixing of such a time limit.

The entire purpose and aim of our Code of Civil Procedure is to liberalize pleadings and practice, to promote justice and prevent snap judgments of any kind, to the end that every man shall have his day in Court and not be thrown out of Court by mere whim and caprice.

Respondents take the position that the filing of a pleading comes under the head of "performing a condition." Justice Carter has already quoted Rule 62 in his opinion, and it is unnecessary to repeat it here. The ordinary meaning of performing a condition is where some act is required to be done preliminary to the vesting of some right or estate or the obtaining of some benefit. In other words, if a party performs A then B will come into existence.

Bouvier defines a condition as follows:

"A qualification, restriction, or limitation modifying or destroying the original act with which it is connected.

"A clause in a contract or agreement which has for its object to suspend, rescind, or modify the principal obligation or in a case of a will to suspend, revoke or modify the devise or bequest."

Funk and Wagnall defines condition as follows:

"An event, fact, or the like that is necessary to the occurrence of some other, though not its cause; a prerequisite."

An examination of the order of Judge Dennis shows that nothing is hinged or dependent on the filing of the amended complaint. There is no other event made dependent on the filing of the order of Judge Dennis. He merely directed the amendment of the complaint, but did not attach any other contingency upon this, and the filing of a complaint would not be the performance of a condition in the sense contemplated in the rule of Court above quoted.

In the circumstances in the instant case, it is apparent that it was not intended to be complied with within twenty days for the reason that the original complaint itself had alleged, and showed, that a suit was about to be instituted for the purpose of substituting a new trustee for the funds in which the appellant here in her individual capacity had only a life interest, with remainder to other parties, and of course it was obvious that if the objection on this score was made by the defendants, it would be necessary to bring suit in the name of such substituted trustee. Fant v. Brissey, 150 S.C. 15, 147 S.E., 632.

Hence, the order in the case at bar must be construed as having provided in effect that the amended complaint need not be served until after the completion of the proceedings for the substitution of the new trustee upon the theory that the law will not order the doing of a vain or futile thing or act. For this reason also the rule has no application to the order in the case at bar.

Brown v. Easterling, 59 S.C. 472, 38 S.E., 118, cannot be applied as an authority governing this case. In that case it appeared that after the case had been put on the roster in regular order and called to trial, an oral demurrer thereto was sustained and the plaintiff therein was permitted, if so advised, to serve and amended complaint within twenty days, the order expressly requiring plaintiff to serve the amended complaint within twenty days. The plaintiff having failed to serve the amended complaint within the twenty days as required, Judge Hudson, a succeeding Judge, allowed the service of the amended complaint after the time limited, and this action of Judge Hudson was reversed on appeal to this Court, upon the ground particularly that the order sustaining the demurrer with leave to file an amended complaint, was a final order and could only be modified by the Judge who made it.

The case of Kaylor v. Hiller, 72 S.C. 433,52 S.E., 120, 121, illustrates the true rule on this subject and throws a strong light upon it. In that case Judge Purdy allowed the defendant to file an answer after the expiration of the time fixed in the order of Judge Watts, and it was objected that under the case of Brown v. Easterling, supra, Judge Purdy had no right to make the order.

This Court did not agree with the contention that Judge Purdy was wrong, and pointed out that the order of Judge Watts was merely an administrative one, and was not a final order as was the case in Brown v. Easterling, using the following language: "The order of Judge Watts belongs to the class of administrative orders as distinguished from final orders. The order does not involve the merits and makes no determination which would authorize plaintiffs to have judgment against defendants; hence cases along the line of Brown v. Easterling, 59 S.C. [472], 479,38 S.E., 118, do not apply. That case held that a succeeding Circuit Judge has no power to permit the plaintiff to serve an amended complaint after expiration of the time prescribed therefor, in an order sustaining the demurrer to the complaint and granting leave to serve an amended complaint. The judgment on demurrer was a determination of the merits and authorized dismissal of the complaint, upon failure to comply with the terms offered. * * * The order of Judge Watts being administrative instead of final, it was such an order as Judge Purdy in his discretion could modify."

Judge Dennis closes his order with these words:

"After service of the complaint so amended, the defendants shall have twenty days within which to reply, demur, or otherwise plead thereto." This shows that it was not contemplated that the complaint should be served within twenty days, for the reason that a time limit was placed on any pleadings subsequent to the complaint. The fact that a time limit was placed on the defendants and none was placed on the plaintiff would lead to the fair inference that none was intended. Expressio unius est exclusio alterius.

The same principle was applied in a case which held that because the statute did not, in terms, mention an answer that the provision of the statute that a motion to make a complaint more definite and certain must be made within twenty days, such motion to make an answer more definite and certain might be made after the twenty days. Lenhardt v.French, 68 S.C. 297, 47 S.E., 382.

This absence of any time limitation is extremely significant and is really of a conclusive nature. I may add, parenthetically, that I see nothing in the position of respondent that only one cause of action has been set out instead of four; if appellant voluntarily dismissed three causes of action, it is not clear, to say the least of it, how respondents have been hurt.

I shall next consider some cases on the question of delay in the prosecution of actions. I begin with the case of ParisMountain Water Company v. Woodside, 127 S.C. 248,120 S.E., 845, in which the suit in question was commenced on January 28, 1913. A consent order of reference was obtained on April 4, 1913, and no further steps therein were taken and the case lay dormant until just prior to the April term of Court in Greenville County in 1920 when the case was stricken from the calendar with leave to restore, and no further action was taken until June 3, 1921. Thereupon a motion was made by the Attorney General to strike the case from the docket for want of prosecution and the motion was granted. This was reversed by the Court in an opinion from which the following quotation is made: "It is true that the case had been on the docket for thirty-eight terms, but it had been continued from time to time by consent; sometimes for the convenience of the plaintiff, and sometimes for the convenience of the defendant. The record does not show that the defendant had ever demanded a trial. The case was stricken from the docket ``with leave to restore' only a few days after the expiration of a year from the time it was stricken from the docket. It is true that some evidence had been destroyed by fire in the meantime, but there is nothing to show that such a thing was likely to occur, and there is no intimation that the plaintiff was in any way responsible for the fire."

A striking case on this subject is that of Hagood v.Riley, 21 S.C. 143. There, after the complaint was filed and the answer made, nothing more was done by either party for ten years. Plaintiff thereupon gave defendant notice that he would press for trial at the ensuing term of Court, and defendant countered a notice of a motion to strike the case from the calendar, upon the ground that the action had abated by reason of plaintiff's neglect and laches. The trial Court, upon this showing, ruled that the plaintiff was out of Court and gave judgment for dismissal. Upon appeal to this Court, the above-mentioned section of the Code, which was then numbered 296, was considered, the Court holding that this delay on the part of the plaintiff in the prosecution of the action did not have the effect of putting the plaintiff out of Court and reversed the order for the dismissal of the complaint. The Court said: "Nor does failure by plaintiff to proceed after docketing his cause, or after service of summons on the defendant, of necessity have this effect of putting the plaintiff out of Court, under Section 296. That section only provides that the Court may dismiss the complaint in case of unreasonable neglect to have the summons served on all of the parties, or to proceed against those served."

There are also many other cases which clearly show the reluctance of this Court to dismiss any cause of action without giving the parties the right of trial. See Leonard v. Peoples Tobacco Warehouse Co., 128 S.C. 155,122 S.E., 678; Cusack v. Southern Railway Co.,116 S.C. 143, 107 S.E., 30; DuPre v. Tilghman LumberCo., 114 S.C. 269, 103 S.E., 526; Ex Parte Baker, 67 S.C. 74,45 S.E., 143; McAuley v. Orr, 97 S.C. 214,81 S.E., 489; Thomas v. MacNeill, 138 S.C. 86, 135 S.E., 643;Stribling v. Fretwell, 157 S.C. 297, 154 S.E., 415.

I note with some degree of interest the abrogation of the rules prevailing under the old practice prior to the adoption of the Code allowing for the dismissal of the case if not docketed within a year and day, and if not pressed for trial at the fourth call of the docket. Monro v. Laurens, 1 McMillan, 442.

The time generally required by our Courts to justify the dismissal of a suit, judging from the cases, for want of prosecution, is not the same as the ordinary statute of limitations. The equitable principle of laches as has often been held by our Courts is in effect an equitable statute of limitation. See Wagner v. Sanders, 62 S.C. 73,39 S.E., 950; Green v. Green, 56 S.C. 193, 34 S.E., 249, 46 L.R.A., 525; McGee v. Hall, 26 S.C. 179,1 S.E., 711, 717; Brock v. Kirkpatrick, 72 S.C. 491, 503,52 S.E., 592.

Chief Justice Simpson says in McGee v. Hall, above cited; "Laches may be regarded as an equitable statute of limitations, and and is applied to equity causes in analogy to legal statutes applied to causes at law. And generally, when a party would not be barred at law, he would not be barred in equity."

These words are quoted with approval in Brock v. Kirkpatrick,supra.

As to the suggestion in his order, in which Judge Mann held that the delay in the trial of the cause places the defendants under a cloud, does not in my judgment state any sufficient legal reason in the absence of other reasons.

As to the suggestion that a number of the defendants are advanced in years, it would seem that a sufficient answer thereto is that our Code contains an express provision (Section 706) for the perpetuation of testimony of witnesses who may be aged or infirm.

Moreover, this Court has already expressly held that this right of action survives even against a deceased person and even the death of a party is no defense. See Winn v. Harby,171 S.C. 301, 172 S.E., 135. Certainly, the condition of some of the defendants should not in anywise be allowed to affect the rights of the appellants against the others.

I have already discussed Judge Mann's conclusion that the amended complaint should have been served within a reasonable time and that such reasonable time would have been twenty days, and held that he was in error in so holding.

Also it was stated in the affidavit of the counsel for the plaintiff that he was, throughout this period, absorbed in the handling of several long, complicated and important rate cases, one against the Broad River Power Company, one against the Carolina Power Light Company, and another against the Southern Bell Telephone Telegraph Company, and that all of these cases reached this Court during the spring and summer of 1933; and while I have held that Judge Mann did not have authority to dismiss the summons and complaint and was thus in error in so doing, yet even if he had had such authority, under the facts and circumstances of this case, his action would have been an abuse of discretion to such an extent as amounted to an error of law.

Section 820 of our Code shows the liberal spirit of our present day jurisprudence, and is as follows: "Enlarging Time for Proceedings in an Action. — The time within which any proceeding in an action must be had, after its commencement, except the time within which an appeal must be taken, may be enlarged, upon an affidavit showing grounds thereof, by a judge of the Circuit Court. The affidavit, or a copy thereof, must be served with a copy of the order, or the order may be disregarded."

The liberality of the Courts in regard to such matters, and their reluctance to deprive one of his right of action without an opportunity for his day in Court, is also illustrated by the many cases holding that a voluntary nonsuit may be allowed at almost any time before trial within discretion of the presiding Judge. Armitage v. Seaboard AirLine Ry. Co., 166 S.C. 21, 164 S.E., 169.

This opinion being concurred in by a majority of the Justices, it becomes the judgment of the Court, which is that the order appealed from is reversed.

MR. CHIEF JUSTICE STABLER, MR. JUSTICE BONHAM and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON concur.

MR. JUSTICE CARTER dissents.