Rish v. Seaboard Air Line Ry.

The opinion of the Court was delivered by Mr. Chief Justice Gary. *33 This is the second appeal in this case. The first appeal was from an order overruling a demurrer to the answer, on the ground that the release therein set up did not constitute a defense. The order was affirmed. 106 S. C. 143, 90 S. E. 704. Thereafter the plaintiff made a motion for leave to file a reply, alleging that said release was void for fraud; and the motion was granted. The defendant also made a motion on the pleadings, and a certain stipulation or agreement between counsel, for an order allowing it to enter judgment in its favor. His Honor refused said motion, and the defendant appealed from both orders. 1, 2 We will consider first the appeal from the order allowing the plaintiff to file a reply. In his order granting the plaintiff’s motion, his Honor, the Circuit Judge, says: “Arj affidavit by Jno. D. Lee, Esq., one of the parties to the stipulation, was submitted and considered, together with the said stipulation and the motion papers, in reaching the conclusion herein. In the view taken by the Court, it did not deem it necessary to hear counter affidavits by defendant’s counsel, and so announced in open Court.” The fact that his Honor, the Circuit Judge, considered the affidavit of J. D. Lee, Esq., in behalf of the plaintiff, and refused to hear counter affidavits on the part of the defefidant, was error unquestionably; but was it prejudicial to the rights of the defendant? In the case of Maddox v. Williamson, 1 Strob. 23, the Court says: “An assignment, no more than a deed, can, in a Court of law, be set aside and canceled; but when either deed or assignment comes in question, in an issue here, it will, if fraudulent and void, be for the purposes of that issue, regarded as a nullity.” And this Court, after quoting that language in McKenzie v. Sifford, 45 S. C. 496, 23 S. E. 622, says: “We do not see, therefore, why the Court below did not have the right to *34 declare the indenture null and void, and also to decree its cancellation.” These cases are cited with approval in Griffin v. Railway, 66 S. C. 77, 44 S. E. 562, which involved the question whether the release therein described was void for fraud. They are also approved in Hodges v. Kohn, 67 S. C. 69, 45 S. E. 102. Section 203 of the Code provides that: “In other cases, where an answer contains new matter constituting a defense by way of avoidance, the Court may, in its discretion, on the defendant’s motion, require a reply to such new matter.” The Court, construing that section in Kennedy v. Hill, 79 S. C. 270, 60 S. E. 689, used this language: “It will thus be seen that the provisions of the Code, requiring a reply to a defense by way of avoidance, was intended for the benefit of the defendant, by giving him notice of the facts upon which the plaintiff relied. * * * The appellant has failed to show this Court that he was prejudiced by said reply.” That language is applicable to the case now before the Court. ■ 3, 4 We next proceed to determine whether there was error, on the part of his Honor, the Circuit Judge, in refusing the defendant’s motion for leave to enter judgment in its favor. The opinion in the Supreme Court, on the former hearing, thus concludes: “Of coure, no ruling is made as to the validity of the release, as that question has not been raised. The order overruling the demurrer is affirmed.” (Italics added.) The decision which has just been filed, in Singleton v. Cuttino, 107 S. C. 465, 92 S. E. 1046, shows that it was the intention of this Court that the judgment pronounced in this case should not be final. Therefore, the defendant is not entitled to enter judgment on the pleadings. Nor is it entitled to enter judgment by reason of said agreement, as its *35 force and effect has not yet been determined in the manner provided by law. 5 Section 228 of the Code is as follows: “The plaintiff and defendant, respectively, may be allowed, on motion, to make a supplemental complaint, answer, or reply, alleging facts material to the case occurring after the former complaint, answer or reply, or of which the party was ignorant when his former pleading was made, and either party may, by leave of the Court, in any pending or future action, set up by a supplemental pleading the judgment or decree of any Court of competent jurisdiction, rendered since the commencement of such action, determining the matters in controversy in said action, or any part thereof; and if said judgment be set up by the plaintiff, the same shall be without prejudice to any provisional remedy theretofore issued, or other proceedings had in said action on his behalf.” The case was pending when the parties, through their attorneys, entered into the agreement. In order to.get the benefit of it as a defense, the proper practice is for the defendant to make a motion to be allowed to file a supplemental answer. This was the practice recognized and followed in McCrady v. Jones, 36 S. C. 136, 15 S. E. 430. Appeals dismissed. Messrs. Justices Hydrick, Watts and Fraser concur in the opinion of the Court.