American Fruit Growers, Inc. v. King

107 S.E. 924, 116 S.C. 226, 1921 S.C. LEXIS 89

• Court: Supreme Court of South Carolina
• Decided: June 30, 1921
• Docket: 10649
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an appeal from an order that a demurrer to the complaint herein be overruled; also “that the plaintiff have leave to amend his complaint, if so minded, so as to more fully set forth what was intended to be said and expressed by the words ‘delivered,’ in paragraph seventh of his complaint, without prejudice to the defendant, to demur again to said amended complaint, if so minded.”

The first exception that will be considered, is as follows:

“The presiding Judge erred, it is • respectfully submitted, in incorporating in his order herein a provision allowing the plaintiff to amend his complaint, in the absence of a motion from plaintiff SO' to amend, and by so permitting said amendment to allow plaintiff completely to change the statement of his cause of action, and insert in lieu of that alleged in the complaint a new and different one.”

The authorities cited in the argument of the respondent’s attorney show that this exception must be overruled. Having reached this conclusion, the exceptions assigning error in overruling the demurrer to the complaint will not be considered, as the questions presented by them are now speculative.

■Appeal dismissed.