Citation Numbers: 37 S.E. 30, 58 S.C. 573
Judges: MR. CHIEF JUSTICE McIVER.
Filed Date: 9/17/1900
Status: Precedential
Modified Date: 1/13/2023
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 *Page 578 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 *Page 579 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,
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.
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