McFadden v. Clark

This is an appeal from an order overruling the objection interposed by the defendants that the plaintiff did not have the right to bring the action, to foreclose the mortgage given to secure payment of the bonds hereinafter mentioned, on the ground that he was not the real party in interest. The plaintiff contended that such an objection could not be entertained, unless it was made by demurrer or answer; and his Honor, the Circuit Judge, so ruled.

In the present case the question whether the plaintiff is the real party in interest is very important, as it is contended by the defendants that the bringing of this action by the plaintiff is in violation of the previous orders of the Court, in the proceedings out of which this action arose, which provide that the bonds representing the shares of the minors be delivered to the master for Richland county, to be held by him for such minors until they become of age, or to be turned over by him to a duly appointed guardian on their behalf; and that the bonds representing the shares of the adults be delivered to the master for Richland county, and that the same be forthwith assigned to them by said master, according to their respective rights therein. Furthermore, it occurs to the Court that the question may hereafter arise as to the liability of the plaintiff, in his official capacity, for any losses that may be sustained under these proceedings, if he should be allowed to proceed with the action.

In the case of Parker v. Victoria Co., 105 S.C. 375,89 S.E. 1068, the Court used this language:

"The case of Haygood v. Boney, 43 S.C. 63 (20 S.E. 803), as well as numerous others that might be cited, clearly shows that the Court has the power to order the amendment, or it can remand the case to the Circuit Court for the purpose of enabling the plaintiff to make a motion to that effect."

Under the peculiar circumstances of this case, we deem it advisable to order that the defendants be allowed to amend their answers, so as to present the question under consideration in proper form.

MR. JUSTICE FRASER concurs in the dissenting opinion.