Erskine v. Markham

66 S.E. 286, 84 S.C. 267, 1909 S.C. LEXIS 262

• Court: Supreme Court of South Carolina
• Decided: November 23, 1909
• Docket: 7382
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chiee Justice Jones.

This action was commenced originally for the purpose of having reformed a deed of land executed by William W. Erskine, deceased, on January 30, 1906, to Mary Ann Erskine, his wife, and Sarah E. Erskine, his daughter, and to his eight grandchildren, the children of Ella Markham, his deceased daughter, for a sale of the land, and division of the proceeds among the parties in interest according to the real intention of the grantor.

Sarah E. Erskine and the eight children of Ella Markham were made defendants, and answered, claiming that the deed properly expressed the intention of the grantor, and asked for a sale of the land and a division of the proceeds among plaintiff and defendants as tenants in common.

The cause was referred to the master to hear and determine all issues of law and fact.

After the taking of considerable testimony, and while the cause was still under reference, a motion was made before the master to amend the complaint by adding new parties and the insertion of additional allegations in the complaint as set forth in the record.

The master, after reciting what the testimony previously taken by him tended to show, held that it would be in furtherance of justice to allow the proposed amendments in order to determine the rights of the widow and children and grandchildren of W. W. Erskine, deceased, to the proceeds of the sale of the said land, and in order to equalize the shares of the heirs at law of the intestate. On appeal from the order of the master, on exceptions alleging that allowance of the proposed amendments was not within the discretion of the master, as they entirely changed the original cause of action, and substituted a new cause of action, the Circuit Court, Judge DeVore, affirmed the master’s order, to which appellants renew their exceptions.

As we cannot say the amendments were not in furtherance of justice, we must affirm the judgment of the Circuit Court.

Since the case of Taylor v. Railroad Co., 81 S. C., 574, 62 S. E., 1113, it must be regarded as settled that even a new cause of action may be inserted by way of amendment, if it be done in furtherance of justice.

The fourth exception questions the right of Judge DeVore to pass upon the merits of the case, as the same were not under consideration.

We do not understand that Judge DeVore has undertaken to pass upon the merits. He distinctly holds that the ref erence has not yet closed and that he does not undertake to pass upon the facts. We construe his language referring to the testimony, and reported by the master, as tending to show certain matters as only indicating that it appears that the amendment was in furtherance of justice.

The judgment of the Circuit Court is affirmed.