Ney B. Steele, Esq., of Chesterfield, for Appellant, cites: As to error on part of Trial Judge in denying motion of appellantto amend its answer by setting up an additional defenseof fraud: 94 S.E.2d 327, 230 S.C. 109; 63 S.E.2d 53, 218 S.C. 402; 179 S.C. 329; 184 S.E. 92. Messrs. H.F. Bell, of Chesterfield, and Eaton, Bell, Hunt Seltzer, of Charlotte, N.C., for Respondent, cite: As toTrial Judge properly refusing to allow defendant to amendits answer by setting up a separate defense and counterclaimfor fraud and deceit: 231 S.C. 493, 99 S.E.2d 187; 190 S.C. 453, 3 S.E.2d 250; 174 S.C. 49, 176 S.E. 866; 85 S.C. 419, 67 S.E. 559; 230 S.C. 239, 95 S.E.2d 262; 217 S.C. 112, 60 S.E.2d 57; 93 S.C. 33, 75 S.E. 278; 231 S.C. 493, 99 S.E.2d 187. November 14, 1961.
t to have its objection, that plaintiffis not real party in interest, stand until trial on merits: 39 Am. Jur. 982, Sec. 108; 41 Am. Jur. 493, Sec. 294; 208 S.C. 292, 38 S.E.2d 18; 160 S.C. 352, 355, 158 S.E. 543; 73 S.C. 21, 29-30, 52 S.E. 786, 789. As to the transfereeof stock and choses in action having been held to benot the real party in interest: 39 F. Supp. 371; 102 F.2d 118; 141 F. 649; 62 S.C. 546, 40 S.E. 948. As to the factof the plaintiff's interest or lack of interest being peculiarlywithin his knowledge, and a very general allegation of hislack of interest, under the circumstances, is sufficient: 160 S.C. 352, 356-357, 158 S.E. 543; 87 S.C. 247, 69 S.E. 232. As to the general rule that amendments to pleadings arefavored and should be liberally allowed in furtherance of justice: 217 S.C. 57, 59 S.E.2d 548. As to where the CircuitCourt refused leave to amend upon a supposed legalground, this court has reviewed the ground and, if legallyerroneous, has allowed the amendment: 217 S.C. 112, 60 S.E.2d 57; 124 S.C. 391, 117 S.E. 807; 207 S.C. 277, 35 S.E.2d 716; 26 S.C. 415, 2 S.E. 314; 59 S.C. 81, 37 S.E. 209. As to the statutory remedy being exclusive: 51 A.2d 313. Messrs. Wyche, Burgess Wofford, of Greenville, Young,Bell Callison, of Greenwood, and Harvey W. Johnson and James B. Stephen, of Spartanburg, for Respondent, cite: As to the courts having power to prevent vexatious andrepeated pleadings on the same point: 116 F.2d 110. Asto a motion, once heard and decided, being reviewed onlyupon a new state of facts arising after such decision: 14 S.C. 324. As to the Supreme Court limiting the scope of reviewto the question or questions actually decided by thetrial judge: 216 S.C. 367, 57 S.E.2d 910; 162 S.C. 159, 160 S.E. 431; 173 S.C. 380, 175 S.E. 849; 115 S.C. 469, 106 S.E. 470; 128 S.C. 344, 122 S.E. 858. Asto when the exceptions do not relate to the matter on appeal,the Circuit Court has power to limit the scope of appeal tothe order or judgment from which the appeal is taken: 15
James H. Watson, Esq., Leatherwood, Walker, Todd Mann, of Greenville, for the Appellants, cites: As to theTrial Court's not having authority to direct a party to divulgethe names and addresses of any person known by theparty or reasonably believed by it, to have information concerningan accident giving rise to litigation: Rule 43, of the Circuit Court Rules, adopted May 8, 1969, for S.C. Messrs. Rainey, Fant McKay, of Greenville, for Respondent, cite: As to the Trial Court's having authority todirect a party to divulge the names and addresses of anypersons known by the party or reasonably believed by it,to have information concerning an accident giving rise tolitigation: Rule 43 of the Circuit Court Rules; Code of Laws of South Carolina, Sec. 10-19 (1962); 26 S.C. 99, 1 S.E. 413; 60 S.E.2d 57. March 25, 1971.
Messrs. McDonald McDonald, of Winnsboro, and Fulmer, Barnes, Berry Austin, of Columbia, for Appellant, cite: As to acts committed prior to the insurance of a processnot constituting an "Abuse" in an action for abuse of process: 53 F.2d 359; Anno. 80 A.L.R. 576; 1 Am. Jur. 2d, Abuse of Process, Sec. 1; 72 C.J.S., Process, Sec. 120, Sec. 2d (a) bb; 54 S.E.2d 116 (va.); 14 S.E.2d 565; 192 F.2d 722; N.C. 189, 19 S.E.2d 849; 225 N.C. 700, 36 S.E.2d 276; 224 N.C. 269, 29 S.E.2d 884; 72 C.J.S., Process, Sec. 120 2d (a) aa; 242 N.C. 424, 88 S.E.2d 233; 1 R.C.L. 102; 1 Am. Jur., Abuse of Process, Sec. 4. As to error on part of trial Judgein allowing the amended complaint to stand: (S.C.) 27 S.E.2d 873; Am. Jur.2d, Abuse of Process, Sec. 7; 72 C.J.S., Process, Sec. 120 (2) (e). As to error onpart of trial Judge in allowing amendment to amended complaintafter the case was tried: 218 S.C. 402; 63 S.E.2d 53; 219 S.C. 231, 64 S.E.2d 641; 217 S.C. 112, 60 S.E.2d 57; 231 S.C. 416, 98 S.E.2d 841. As tothere being prejudicial error in the trial Judge's charge: 192 S.C. 382, 6 S.E.2d 103; 1 Am. Jur.2d, Abuse of Process, Sec. 4. As to Appellant being entitled to orderstriking allegations of damage to respondent's reputation,there being no proof of such damage: 196 S.C. 373, 13 S.E.2d 915; 204 S.C. 395, 29 S.E.2d 768; 141 S.E.2d 613. As to it being error to charge a correct principleof law where such principle is inapplicable to the issueon trial: 1 Am. Jur., Abuse of Process, Sec. 6; 72 C.J.S., Process, Sec. 120 2d (d); 228 S.C. 144, 89 S.E.2d 97; 247 S.C. 479, 148 S.E.2d 162. As to the verdictbeing so excessive as to evidence bias and prejudice on thepart of the jury: 210 S.C. 367, 42 S.E.2d 705. Messrs. Henry Hammer and Henry H. Edens, of Columbia, and John A. Martin, of Winnsboro, for respondent, cite: As to the issue of abuse of process being properly submittedto the jury: 169 F.2d 177; 249 S.C. 206, 153 S.E.2d 693; 189 Va. 624 54 S.E.2d 116; 23
applications for insurance are required: 193 S.C. 368, 8 S.E.2d 314; 172 N.C. 534, 90 S.E. 574. Asto an insurance Company being entitled to truthful, honestand fair answers to questions on its applications: 221 S.C. 193, 69 S.E.2d 919; 226 S.C. 60, 83 S.E.2d 553; 241 U.S. 613, 60 L.Ed. 1202, 36 Sup. Ct. 676; 21 F.2d 709, 55 A.L.R. 735. As to if an applicant for insurancehas a reasonable basis to believe his statements madeto procure the insurance are untrue, then he fraudulently obtainedsuch insurance: 165 S.C. 494, 164 S.E. 175. As toDefendant being entitled to a charge, as requested, as to themeaning of the term "Good Health" as used in applicationsfor issuance and reinstatement of insurance: 104 Ga. 256, 30 S.E. 918; 14 N.Y. Super. 338; 235 Mo. App. 884, 138 S.W.2d 29. As to the Defendant being entitled to amendits answer to conform to the proof to show an undisclosedsurgical procedure within four months of the date of the applicationfor this insurance: 217 S.C. 57, 59 S.E.2d 548; 217 S.C. 112, 60 S.E.2d 57; 207 S.C. 277, 35 S.E.2d 716. Messrs. Wyche, Burgess, Freeman Parham, of Greenville, for Respondent, cite: As to the trial Judge's charge tothe jury, when viewed as a whole, being a full and correctstatement of the Law: 213 S.C. 269, 49 S.E.2d 201; 238 S.C. 364, 120 S.E.2d 209; 175 S.C. 117, 178 S.E. 503; 95 S.C. 302, 78 S.E. 890. As to the trial Judgeproperly refusing Defendant's motion to amend its answer,made during the course of the trial: 230 S.C. 239, 95 S.E.2d 262. December 8, 1965.
nslong existing and the unreasonable delay by Plaintiffsto complain of the conditions to Defendant's prejudice, being admissible: 207 S.C. 63, 34 S.E.2d 488; 208 S.C. 103, 37 S.E.2d 305; 191 S.C. 105, 3 S.E.2d 816; 218 S.C. 47, 61 S.E.2d 387; 220 S.C. 131, 66 S.E.2d 809; 226 S.C. 257, 84 S.E.2d 857. As to the defenses of the answers relating to the respectiverights, circumstances and conditions of the partiesbeing relevant and should not be stricken where equitablerelief is sought, particularly in advance of the trial: Anno. 61 A.L.R. 924; 5 S.C.L.Q. 159; 60 S.C. 254, 38 S.E. 456; 240 S.C. 244, 125 S.E.2d 628; 242 S.C. 152, 130 S.E.2d 363; 212 S.C. 156, 46 S.E.2d 673; 39 Am. Jur. 298, Sec. 16; 81 Ohio App. 465, 78 N.E.2d 752, 39 Am. Jur. 326, Sec. 44; 39 Am.Jur. 298, Sec. 16; 93 S.C. 125, 75 S.E. 1018; 212 S.C. 156, 46 S.E.2d 673; 215 S.C. 344, 55 S.E.2d 281. As to the Defendant, before trial, having theright to amend its answers and show the true nature of theownership of properties: 217 S.C. 112, 60 S.E.2d 57; 219 S.C. 231, 64 S.E.2d 641; 240 S.C. 118, 124 S.E.2d 788. Messrs. Johnson Smith, of Spartanburg, for Respondent, cite: As to the allegation of damages not being an allegationin support of future, remote or speculative damages: 48 S.E.2d 329, 212 S.C. 496; 102 S.C. 442, 86 S.E. 817. As to Trial Judge properly striking Defendant'sallegation that it has constructed facilities "all at a costto the Defendant of large sums of money": 212 S.C. 496, 48 S.E.2d 329. As to the complaint, and its interpretationby the lower Court, clearly showing that the nuisancewas successive and the taking partial and temporary: 158 S.E. 113, 160 S.C. 10; 87 Tenn. 614, 11 S.W. 703; 101 Tenn. 342, 47 S.W. 700. As to the Trial Judgeproperly striking the defense which attempted to set up the"balance of convenience doctrine", or as it is sometimescalled, "Comparative injury theory": 80 S.C. 1, 66 S.E. 1057; 212 S.C. 496, 48 S.E.2d 329; 28 Am. Jur. 552, Sec. 55; 141 W. Va. 627, 92 S.E.2d 891. Messrs. Means, Evins
Daniel R. McLeod, Attorney General, and WilliamL. Pope, Assistant Attorney General, of Columbia, forAppellant, cite: As to the language of Section 7-104 of the1962 Code of Laws of South Carolina regarding the timewithin which the magistrate shall file the record with theClerk of Court not being mandatory or directory: 50 Am.Jur., Statutes, Sec. 24, 82 C.J.S., Statutes, Sec. 376; 181 S.C. 540, 188 S.E. 192; 67 C.J.S., Officers, Sec. 114, p. 404; 9 Rich. Eq. 521; 82 C.J.S., Statutes, Sec. 380, p. 881; 190 So. 101; 22 C.J.S., Criminal Law, Sec. 396 (a); 217 S.C. 112, 60 S.E.2d 57. As to the CountyCourt not having jurisdiction to reverse the conviction beforethe magistrate and dismiss the charges without firsthaving obtained the record from the magistrate by a Writof Mandamus: 51 C.J.S., Justice of the Peace, Sec. 159; 74 S.C. 443, 54 S.E. 600; 150 A. 239; 201 S.W. 664; 255 P.2d 220; 233 S.C. 81, 103 S.E.2d 741; 186 So. 641; 211 S.C. 462, 46 S.E.2d 47. Messrs. Law, Kirkland Aaron, of Columbia, for Respondent, cite: As to the word "Shall", as used in the Statute,being mandatory: 171 Neb. 741, 107 N.W.2d 535, 83 A.L.R.2d 831; 50 Am. Jur., Statutes, Sec. 27; 36 S.E.2d 907.
Messrs. Hayes Hayes, of Rock Hill, and W.M. Brice,Jr., of York, for Appellant, cite: As to it being error to refusethe appellant the right to plead the Statute of Limitationsby oral motion at the time of the trial: 74 S.C. 236, 54 S.E. 75; 173 S.C. 199, 175 S.E. 436; 59 S.C. 81, 37 S.E. 209; 26 S.C. 415, 2 S.E. 314; 217 S.C. 112, 60 S.E.2d 57; 217 S.C. 57, 59 S.E.2d 548; 207 S.C. 277, 54 S.E. 75; 32 S.C. 57, 10 S.E. 616; 31 S.C. 588, 10 S.E. 616; 26 S.C. 474, 2 S.E. 483. Messrs. Simrill Simrill, of Rock Hill, for Respondent, cite: As to findings and conclusions of Special Referee, concurredin by the Circuit Judge, not being disturbed on appealif there is any supporting evidence: 232 S.C. 237, 101 S.E.2d 651; 106 S.E.2d 447, 234 S.C. 1. As to theSupreme Court not considering exceptions to findings andconclusions of the Special Referee which were not challengedby exceptions to the Report of Referee: 232 S.C. 405, 102 S.E.2d 364; 232 S.C. 70, 100 S.E.2d 825; 231 S.C. 301, 98 S.E.2d 534; 232 S.C. 245, 101 S.E.2d 657; 231 S.C. 368, 98 S.E.2d 539; 221 S.C. 23, 68 S.E.2d 629; 48 A.L.R.2d 541; 230 S.C. 201, 95 S.E.2d 167. As to Special Referee properly refusingthe appellant the right to plead the Statute of Limitations byoral motion at the time of the trial: 194 S.C. 512, 10 S.E.2d 15; 190 S.C. 457, 3 S.E.2d 543; 16 S.C. 378; 9 S
611; 34 Am. Jur. 213. As to thegeneral principles of law governing an election contest: 191 S.C. 183, 4 S.E.2d 254. Messrs. Leatherwood, Walker, Todd Mann, of Greenville, for Respondents, cite: As to who is a resident entitledto vote in an annexation election: 195 S.C. 472, 12 S.E.2d 13; 195 S.C. 15, 10 S.E.2d 160; 107 S.C. 209, 92 S.E. 479. As to voters who had moved from thearea proposed to be annexed with no intention of returningnot being entitled to vote in the area sought to be annexed: 27 N.D. 357, 146 N.W. 537; 125 Ill. 141, 17 N.E. 232; 129 Iowa 122, 105 N.W. 387. As to when illegalvotes are cast in an election they must be deducted fromthe winning side: 1 Bay 441; 195 S.C. 15, 10 S.E.2d 160. As to the Trial Judge properly allowing plaintiffs toamend their complaint so as to correctly show the resultsof the election as certified to by the Commissioners of Elections: 183 S.C. 478, 191 S.E. 337; 81 S.C. 574, 62 S.E. 113; 199 S.C. 85, 18 S.E.2d 611; 217 S.C. 57, 59 S.E.2d 548; 217 S.C. 112, 60 S.E.2d 57; 207 S.C. 277, 35 S.E.2d 716. Messrs. Watkins, Vandiver, Freeman Kirven, of Anderson, for Appellants, in Reply, cite: As to the proper interpretationof the phrase: "Registered qualified electorsresiding within the territory proposed to be annexed:" 186 S.C. 270, 195 S.E. 539; 189 S.C. 85, 200 S.E. 95; 138 S.C. 468, 136 S.E. 891; 171 S.C. 432, 172 S.E. 434; 167 S.C. 476, 166 S.E. 637.
In that case an order refusing an amendment was reversed. This was also done in Mack v. Plowden, 217 S.C. 112, 60 S.E.2d 57. The order refusing the amendment and the decree granting respondent a divorce are reversed.