Lummus Cotton Gin Co. v. Counts

July 7, 1914. The opinion of the Court was delivered by The following statement is taken from the record: "This action was commenced by the plaintiff named above against the defendant named above by the service of a summons and complaint on the defendant on the 22d day of November, 1912. Within twenty days the defendant served his answer in said case. Within twenty days thereafter plaintiff served an amended summons and complaint; and within twenty days thereafter the defendant served his answer to the amended complaint. The pleadings were made up on January 16th.1913, and were all verified. The case was placed on calendar 2 of the Court of Common Pleas for said county for the April (1913) term of said Court, and was No. 152 on the docket. Only two weeks is provided by law for the April term of the Court of Common Pleas for said county. The whole of the second week, up to the usual hour of adjournment on Friday, was taken up with the trial of jury cases. Some time during the morning session on Friday the presiding Judge announced in open Court that, on account of sickness in his family, he would not hold Court on Saturday (the next day). After the usual hour for adjournment on Friday, but while the Court was still in session, the presiding Judge, at the request of plaintiff's counsel, called this case up for disposition, plaintiff's counsel asking that it be heard. Defendant's attorney strenuously objected to going on trial, stating that he was very tired; that his client was not then in town; that his client had been adjudged a bankrupt and enjoined from disposing of his property, etc., etc. Plaintiff's attorney insisted on a trial, stating in substance that he had fully apprised defendant's attorney of his intention to press for trial at this term at the first opportunity, etc., etc.; that defendant lived in the city of Laurens, and that he, plaintiff's counsel, had seen him in town that day. After considerable discussion of the matter by counsel on both sides, other than is set out above, the Court announced that the case would have to go to trial. The decree states what further occurred."

In settling the "Case," the presiding Judge reported: "In justice to the presiding Judge for making what appears to be a very summary disposition of the case, it should be stated that I was impressed by what passed before me between counsel engaged in the case with the idea that the defendant had no defense, but was fighting for delay. For my own satisfaction, I called upon Mr. Richey, Sr., who was in charge of the case, to state whether or not it was his opinion, from what he knew of the case, that the defendant had a good defense. Mr. Richey would not answer this inquiry in the affirmative, but said he did not know. This incident served to confirm the opinion already formed. The Court was not called to hear any other matter on calendar 2. The day of reference was fixed early in the week to suit the convenience of Mr. Richey, Sr., who stated that he would be out of town the latter part of the week."

In cases too numerous to mention, it has been held that matters pertaining to the trial of causes, including the hours of the sessions of the Court, and the granting or refusing of motion for continuance, either within or beyond the term, are in the discretion of the trial Court, and that the exercise of that discretion will not be interfered with by this Court, unless it is clearly made to appear that it was abused, in other words, that the exercise of it was manifestly erroneous and prejudicial to the appellant.

The issues having been made up by the pleadings, the case was properly docketed for trial, and no other or further notice that it would be called for trial was necessary (Code Proc., sec. 314), although it seems that plaintiff's attorney did give defendant's attorneys ample and timely notice that he would press for trial at the next ensuing term. While cases usually are, and, as a rule, ought to be disposed of in the order in which they are placed on the calendar, those first on the calendars having the prior right of trial, yet this rule is not invariable or absolute. The trial Judge should be allowed some discretion in dispatching the business of the Court. At any rate, it cannot be successfully contended that a defendant in a cause at the foot of one of the calendars has any right to demand that every case ahead of his shall be disposed of before his can be tried. Those ahead of him may waive their priority of right to trial. In this instance, they appear to have done so, as none of them were in Court demanding their priorities, or are now complaining. The defendant has no right to complain, because, by their failure to do so, his case was reached and ordered to trial sooner than it otherwise would have been, unless by relying, in good faith and for good and sufficient reasons, upon the belief that the cases ahead of his would be tried, he was caught unawares and unprepared for trial. If this had been so, he should have made it appear by affidavit. But such was not the fact, for the plaintiff had given him timely notice that he would press for a trial at the first opportunity. Moreover, the defendant did not attempt to show that he would suffer any legal prejudice by having his case ordered to trial. His attorney stated that defendant was out of the city, but he did not say that he wanted to use him as a witness, or that he needed him at the trial for any other purpose, and could not safely proceed in his absence. On the contrary, when asked by the Court if he had a meritorious defense, he said he did not known, and, notwithstanding opportunity was afterwards given him to prove any defense available to him under the pleadings, he offered no evidence whatever; and has not offered any good reason for his failure to do so. To reverse a judgment, under such circumstances and for such reasons, would bring the administration of justice by the Courts into merited contempt. This disposes of the first three exceptions. But every good ground raised by these exceptions was waived, when the appellant agreed that the case should be marked "heard," and that it should be referred to a special referee to take and report the testimony to the presiding Judge, the date of the reference being fixed in the order by his consent and for his convenience. It necessarily followed that the decree was to be based upon the testimony so taken and reported, just as if the case had actually been heard by the Judge in open Court, and his decision reserved.Roberts v. Wessinger, 69 S.C. 283, 48 S.E. 248. The consent of defendant's attorney to marking the case "heard," and to the order above referred to, concludes him as to the points raised by the 4th, 5th, 6th, 7th, 8th, 9th, 12th and 13th exceptions.

Appellant contends, however, that he did not, in fact, agree that the case be marked "heard," or consent to the order of reference. Perhaps, it would be more accurate to say that his contention is that the record does not show affirmatively that he did so agree and consent, except the statement of the Circuit Judge in his decree that he did, and the statement of the plaintiff's attorney to that effect before the referee, which was made in response to defendant's objections to the reference. The statements of both attorneys as to that matter were taken down by the referee, and reported to the Court. The appellant relies upon rule 14 of the Circuit Court, to wit: "No agreement or consent between the parties, or their attorneys, in respect to the proceedings in a cause shall be binding, unless the same shall have been rendered to the form of an order by consent and entered; or unless the evidence shall be in writing, subscribed by the party against whom the same shall be alleged, or by his attorney or counsel; or unless made in open Court and noted by the presiding Judge or the stenographer on his minutes by the direction of the presiding Judge."

It will be seen that the rule applies to all agreements and consents between the parties or their attorneys, whether made in or out of Court. But it will be noted also that the rule makes a material difference between those made out of Court and those made in Court. The latter need not be in writing, but need only be noted by the presiding Judge, or by the stenographer, under his direction. It does not appear that the agreement in question was not noted by the presiding Judge. Nothing appearing to the contrary, we are bound to presume that it was. Ex parte Pearson,79 S.C. 302, 60 S.E. 706. Moreover, it may be inferred from the record that it was, in fact, noted by the Judge, since he mentioned it in his decree.

In the first paragraph of the complaint, the corporate existence of the plaintiff is alleged. In the first paragraph of the answer it is denied, as follows: "The defendant alleges that he has neither ``knowledge nor information sufficient to form a belief as to the truthfulness of the allegation contained in paragraph one of the complaint, and therefore denies the same.'" This amounts to nothing more than a general denial, and does not put in issue the plaintiff's corporate existence or capacity to sue.Steamship Co. v. Rogers, 21 S.C. 27.

The second paragraph of the answer admits the allegation of the second paragraph of the complaint. The third denies the allegations of paragraphs 3, 4, 5 and 6 of the complaint. Nothing at all is said as to the allegations contained in the other paragraphs of the complaint. Section 219 of the Cod eof Procedure provides that every material allegation of the complaint not controverted by the answer, as prescribed in section 199, shall, for the purposes of the action, be taken as true. It follows that there was no error in taking as true all the allegations of the complaint, except those contained in paragraphs 3, 4, 5 and 6.

The statement by defendant's attorney that defendant had been adjudged a bankrupt by the Federal Court and enjoined from disposing of his property and the exception based thereon need not be considered, as it turned out that the order was reversed, as having been erroneously made.

Upon calculation of the amount due on the notes sued on, we find an error of $2.05 against the defendant. In other words, the judgment was too great by that amount, and must be reduced accordingly. It is, therefore, the judgment of this Court that the judgment of the Circuit Court be reduced in amount two and 05-100 dollars, and that, so reduced, it be affirmed.