Opinion
13647
June 7, 1933.
Before STOLL, J., Lee, October, 1932. Affirmed.
Action by the First Carolinas Joint Stock Land Bank of Columbia against George M. Stuckey and others. From an order striking out second answer and defense and counterclaim contained in defendant's second amended answer, George M. Stuckey and Agnes J. Stuckey appeal.
Order of Judge P.H. Stoll directed to be reported follows:
This matter came before me at chambers in Kingstree, S.C. on January 24, 1933, for a hearing upon the motion of the plaintiff to strike out the second answer and defense and counterclaim contained in the second amended answer of the defendants George M. Stuckey and Agnes J. Stuckey, and also upon the demurrer of the plaintiff to the said second answer and defense and counterclaim.
Plaintiff's motion to strike out was based upon three grounds, the second of said grounds being that the said second answer and defense and counterclaim purported to be an amendment of the second answer and defense and counterclaim in said defendant's amended answer herein dated November 30, 1932, and as such was not proper or allowable (a) after plaintiff's demurrer to the said pleading sought to be amended had been sustained without leave to amend and (b) as a second amendment of a pleading previously amended as of course. After hearing arguments of counsel on this ground I decided that the plaintiff's motion should be granted, and it was, therefore, unnecessary to hear arguments upon or to pass upon the questions raised by plaintiff's demurrer or by the first and third grounds of plaintiff's motion to strike out. These questions are expressly left open and undecided by this order.
The summons and complaint in this case were served upon the defendants George M. Stuckey and Agnes J. Stuckey on October 28, 1932, and these defendants served their original answer on November 15, 1932. On November 23, 1932, the plaintiff gave notice of a motion to strike out this answer as sham, irrelevant and frivolous, and thereafter these defendants amended their answer as of course and served their amended answer on November 30, 1932. The plaintiff moved to strike out the original and the amended answers as sham, irrelevant and frivolous and also demurred to so much of the amended answer as was set forth under the caption "For a Second Answer and Defense and by way of Counterclaim" on the ground that the same failed to state facts sufficient to constitute a defense or counterclaim to the cause of action set up in the complaint. This motion and demurrer were heard by his Honor, Judge E.C. Dennis, on December 9, 1932, who immediately after the conclusion of arguments by counsel announced what his decision would be, and thereafter issued his order dated December 21, 1932, requiring the defendants to amend their answer in certain particulars, striking out the so-called third answer and defense set forth in the amended answer and sustaining plaintiff's demurrer to the said second answer and defense and counterclaim of the amended answer on the ground that the allegations thereof failed to state a cause of action or a defense to the complaint. It appears that during the course of the arguments on the demurrer the question of whether the defendants should be granted leave to amend was brought to the attention of the Court, but the order sustaining the demurrer did not grant such leave and contained no provision with respect to the right to amend the pleading demurred to.
The said order was filed on December 23, 1932, and the defendants were given notice of such filing on the same day. No appeal was taken by the defendants from the order but on December 22, 1932, they served their second amended answer which, in addition to making the amendments required of them, purported to amend as of course within twenty days after the demurrer the second answer and defense and counterclaim of the amended answer.
The defendants contended that the right to make such an amendment is conferred upon them by Section 493 of the 1932 Code, but as I read that section it does not permit a second amendment of a pleading which has been previously amended as of course. Furthermore, in my opinion the matters set forth in the section of the pleading which the defendants are now seeking to amend have been adjudicated by the order of Judge Dennis sustaining the demurrer thereto. Inasmuch as that order failed to grant leave to amend and no appeal was taken therefrom and no application was made to Judge Dennis for a modification of the order, the defendants have only such rights as the order allows, and it is not within my province or jurisdiction to supersede the order by allowing or recognizing an amendment of the pleading with reference to which the order was passed. In so deciding, I am following the cases of McEachern v. Wilson, 154 S.C. 201, 151 S.E., 472, and Brewton v. Shirley, 93 S.C. 365, 76 S.E., 988, which expressly hold that a pleading cannot be amended as of course under the section of the Code relied upon by the defendants after a demurrer to such pleading has been sustained without leave to amend, even though the demurrer was heard within the period allowed for amendments as of course.
It is, therefore, ordered and adjudged that the plaintiff's motion to strike out the second answer and defense and counterclaim contained in the second amended answer dated December 22, 1932, of the defendants George M. Stuckey and Agnes J. Stuckey be, and the same is hereby, sustained, and that Paragraphs numbers 7 through 10 inclusive, of the said second amended answer be, and the same are hereby, stricken out.
Messrs. Robinson Robinson, for appellants, cite: Statutes when free from ambiguity are the supreme law: 154 S.C. 201; 151 S.E., 472; 271 Fed., 319; 239 U.S. 33; 60 L.Ed., 133; 156 S.C. 299; 152 S.E., 865; 101 S.C. 312; 85 S.C. 774; 210 Pa., 544; 1 L.R.A. (N.S.), 409; 106 S.C. 53; 90 S.E., 321. Stare decisis: 154 S.C. 201; 151 S.E., 472; 93 S.C. 365; 76 S.E., 988. Duty of Court to correct erroneous decision: 42 S.C. 222; 20 S.E., 221; 106 S.C. 143; 90 S.E., 704; 73 A.S.R., 81; 8 Cal., 631.
Messrs. Melton Belser, for respondent, cite: As to statute governing amendment after a sustained demurrer: 154 S.C. 201; 151 S.E., 472; 93 S.C. 365; 76 S.E., 988.
June 7, 1933. The opinion of the Court was delivered by
The order of his Honor, Circuit Judge Stoll, in this cause, appealed from by some of the defendants, which will be reported, is entirely satisfactory to this Court.
Counsel for the appellants criticize the holdings in McEachern v. Wilson, 154 S.C. 201, 151 S.E., 472, and Brewton v. Shirley, 93 S.C. 365, 76 S.E., 988, relied upon to sustain the conclusion of the lower Court. Upon careful consideration of those cases, we are satisfied with the conclusions there announced.
If we should agree with the construction placed by appellants upon the provisions of Section 493 of the Code, as to "Amendments of Course," that the appellants had the legal right, as a matter of course, without the permission of the Court, to put in a second amended answer, the result would be to practically prevent a case in the Court of Common Pleas from ever being tried, when a defendant desired to accomplish that purpose. If a party has the right, under the terms of that section, to file more than one amended pleading, as a matter of course, he has the right to file any number of such amended pleadings. He might continue to file and file amended pleadings, and the case would never be ready for trial. We cannot conceive that the legislative authority ever intended such consequences.
The order appealed from is affirmed.
MESSRS. JUSTICES STABLER and BONHAM concur.
MR. JUSTICE CARTER disqualified.
ORDER ON PETITION FOR REHEARING
In their petition for rehearing, the appellants have called attention to our failure to pass upon what they state is "a great constitutional question, to wit, the relative rights of the legislative assembly and of the judiciary where the language and meaning of the statute are clear and there is nothing to be construed."
They contend, too, that under Rule 29 of this Court, since "a constitutional question has been raised," they are entitled to have the case orally argued and not submitted upon the printed transcript of record and briefs of counsel.
We gather from the argument that the position is that the construction of what is now Section 493 of the Code, given by this Court in the cases relied upon by the Circuit Judge in the order he made, referred to in the Court's previous opinion, is in violation of Section 14 of Article 1 of the Constitution, which provides that "the legislative, executive and judicial powers of the Government shall be forever separate and distinct from each other, and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of any other."
We think the position taken is strained and without a semblance of merit. This Court, in the decisions mentioned, has not attempted to make law a duty of the legislative department. The Court has only construed the law as made by the Legislature. The duty to construe what the Legislature has written into the laws of this State rests upon this Court, when a construction is properly demanded. If the Court had failed to construe the law, when properly demanded, the Court would have failed to respond to its duty as imposed by the Constitution.
If the section of the Code here involved carried the construction contended for by the appellants, the section would clearly be violative of Section 15 of Article 1 of the Constitution, where it is declared, as to the Courts of this State, that "every person shall have speedy remedy therein for wrongs sustained." See Rylee v. Marett, 121 S.C. 366, 113 S.E., 483. If a defendant in a lawsuit can file, and continue to file, amended pleadings, it will be impossible for a plaintiff to have any remedy at all in the Courts, much less the "speedy remedy" guaranteed to him by the Constitution.
The case was properly submitted under Rule 29. There is no constitutional question involved. The fact that a party to a suit in this Court charges that a constitutional question is involved is not sufficient of itself to make such a question. If this were so, a party seeking delay could always claim that in some way his constitutional rights had been violated. Counsel for the appellants have overlooked the interesting case of Duncan v. Record Publishing Co., 145 S.C. 196, 143 S.E., 31, 81, where we quoted with approval what Chancellor Harper said in Pell v. Ball's Ex'rs, 1 Rich. Eq. (18 S.C. Eq.), 419, "To decide in favor of the validity of a law which is charged to be contrary to the Constitution is certainly to decide that there is no constitutional question involved in the case. The Constitution does not touch the question."
The petition for rehearing and for oral argument is refused, and the order staying the remittitur is revoked.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER and BONHAM concur.
MR. JUSTICE CARTER disqualified.