Opinion
7867
April 20, 1911.
Before PRINCE, J., Kershaw, March, 1910. Affirmed.
Action by L.L. Whitaker et al. against C.H. Manson et al. Defendants appeal.
Messrs. Shannon Mills, for appellants, cite: Rule XX, Cir. Ct., Code of Proc. 194-5; 76 S.C. 15, 189; 69 S.C. 52; 82 S.C. 12; 81 S.C. 354; 76 S.C. 189; 61 S.C. 251; 64 S.C. 338.
Messrs. Clark von Tresckow, contra.
April 20, 1911. The opinion of the Court was delivered by
This is an appeal from an order refusing a motion to make the amended complaint more definite and certain by requiring plaintiffs named in the complaint and caption who allege that they sue for the benefit of others, to name those for whose benefit they sue. The motion was refused by Judge Prince on the ground that it came too late after an answer to the complaint had been served.
The order allowing the complaint to be amended was granted October 21, 1908. Notice of appeal to the Supreme Court was served October 29, 1908. On November 10, 1908, an answer was served expressly reserving the right of appeal. The order of the Circuit Court was affirmed October 22, 1909. 84 S.C. 29, 65 S.E. 953. Upon filing of the remittitur on November 9, 1909, the motion to make the complaint more definite and certain was served.
Rule XX of the Circuit Court expressly provides that such a motion "must be noticed before demurring or answering the pleading and within twenty days from the service thereof." This rule was construed and enforced in Whaley v. Lawton, 53 S.C. 582, 31 S.E. 660, contrary to appellants' contention. The fact that the right of appeal was reserved in the answer served could not also operate to reserve the right to move to make the complaint more definite and certain. Furthermore the granting of the motion would have produced a result in conflict with the decision of the Court on the former appeal.
The judgment of the Circuit Court is affirmed.