Dunbar v. Fant

176 S.E. 866, 174 S.C. 49, 1934 S.C. LEXIS 180

• Court: Supreme Court of South Carolina
• Decided: November 1, 1934
• Docket: 13933
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Carter.

This action, commenced in the Court of Common Pleas for Spartanburg County, December 5, 1931, by Claude R. Dunbar, as receiver of the Cowpens-Security Bank, as plaintiff, against the defendants, Albert S. Fant, State Bank Examiner, and the Fidelity & Deposit Company of Maryland, is an action aginst the said public officer and the surety on his official bond for damages alleged to have been sustained by the parties in interest by reason of an alleged failure on the part of the said bank examiner to well and truly perform the duties of his office as required by law. The case was tried at the April, 1932, term of said Court before Judge William H. Grimball and a jury, resulting in a verdict directed by his Honor, Judge Grimball, in favor of the defendants. Thereafter, the plaintiff appealed to this Court from the judgment of the lower Court and this Court, for reasons set forth in the opinion filed in the case, written by Chief Justice Eugene S. Blease, reversed the lower Court and remanded the case for further action, which case is reported in 170 S. C., 414, 170 S. E., 460, 90 A. L. R., 1412, and for the purpose of a full statement of the case and a clear understanding of the holding and ruling of this Court in the case, attention is called thereto. It appears from the record before us that the case was again set for trial at the January, 1934, term of said Court and the matter came up before Hon. E. C. Dennis, at which time his Honor, Judge Dennis, considered and acted upon a motion of the defendants, duly noticed, to dismiss the complaint on the grounds that the facts alleged therein were insufficient to constitute a cause of action; and, also, at said time considered and acted upon a motion on the part of the plaintiff, duly noticed, to amend the complaint in certain particulars. His Honor, Judge Dennis, after hearing argument on these motions and upon full consideration, denied the plaintiff’s motion to amend and granted the defendant’s motion to dismiss and issued an order accordingly. Thereupon the plaintiff made a motion before Judge Dennis to be allowed to amend and to plead over in the original cause of action under Section 493 of the Code of Daws of South Carolina, 1932. This motion of the plaintiff, his Honor, Judge Dennis, also refused and issued an order to that effect. From the said rulings and orders, the plaintiff, pursuant to due notice, has appealed to this Court, imputing error to -Judge Dennis.

The questions raised in the several motions referred to are fully considered in the'said orders of his Honor, Judge Dennis. We agree with the conclusion of Judge Dennis. The exceptions are, therefore, overruled and the orders and judgment of the lower Court affirmed.

Messrs. Justices Stabler and Bonham and Mr. Acting Associate Justice C. T. Graydon concur.