McAuley v. Orr.

81 S.E. 489, 97 S.C. 214, 1914 S.C. LEXIS 164

Opinions

The opinion of the Court was delivered by

Mr. Justice Watts.

This action was originally commenced by service of summons and complaint on defendants on March 4, 1889. The original parties to the action were W. E. Dickey, D. D. Chambers and Marietta Cornwell, plaintiffs, and A. E. Orr, William A. Orr, “Sis” Orr, and E. H. Barber and W. P. Ferguson, as executors of the estate of John Dickey,' deceased, defendants. All of the defendants were at that time minors, of tender age, except A. E. Orr, but were properly served, but no guardian ad litem was appointed to' represent them, and it does not appear that any one was ever their legal representative. The action was brought to- recover land and rents and profits. To the complaint a demurrer was interposed by the defendants', A. E. Orr and Barber and Ferguson, as executors, on the ground that two causes of action were improperly united. His Honor, T. B. Eraser, sustained the demurrer, but by his order, dated November 30, 1891, gave the plaintiffs the right to elect upon which cause of action they would go to trial. It does not appear that any steps were taken since 1892, when notice of election was -served, until 1912, when a guardian ad litem for certain minor plaintiffs was appointed. William' E. Dickey, one of the original plaintiffs, and the party at whose instance the original suit was instituted, died October 17, 1894, having promised the defendant, A. E. Orr, that he would abandon the suit and have the same dismissed. Notice of election was served upon defendants February 11, 1892. W. E. Dickey died October 17, 1894. Two years and eight months elapsed, and the record fails to show that there was the slightest effort on his part to push the action to trial. The present minor plaintiffs-respondents claim under W. E. Dickey.

It appears that the case was first docketed on Calendar 2 in April term of Court, 1889, and carried forward on said Calendar 2 for 26 consecutive terms of said Court of Common Pleas for York county until the October term of said Court, 1897; and it appears that then the following entry was made by the presiding Judge: “Stricken off with leave to restore” — that said cause was dropped from the calendar, and it does not appear on the same until April term of the Court, 1900, and was then placed on the calendar without any endorsement or entry of any kind. It has been carried on the calendar since that time. The record fails to show that any notice of motion to reinstate or restore was ever given. The records show it was stricken off in April, 1897, and three years after, in April, 1900, it appears on the calendar again. The record shows that in April, 1889, on motion of the plaintiff’s attorneys, the cause was referred to Jas. F. Wallace, Esq., as special referee; that in May, 1889, Judge Fraser heard demurrer and passed order heretofore referred to. The record further shows that from November 30, 1891, nothing was done until 1912, when a guardian ad litem for Frances M. McAuley and other minor plaintiffs was appointed. The record further shows that the attorneys for the plaintiffs on March 10, 1889, served upon W- D. Orr, the father of W. A. Orr, Hartwell Orr, and “Sis” Orr, minor defendants in the case, that, unless he appear and represent his children within 20 days after the. service of said summons, the plaintiffs’ attorneys would apply to the Court and have some responsible person appointed.as guardian ad litem to represent said children; that the record fails to disclose that any guardian ad litem was ever appointed, or that any one ever appeared and represented them. It appears from the record affirmatively that Mrs. A. E. Orr thought Dickey had dropped the suit, and that the death of Dickey and R. L. Crook deprives her and the defendants of material and important testimony to make out their defense; that the death of her brother, John C. Dickey, and E. H. Barber, while this suit has not been pressed for trial, deprives her of important evidence that cannot now be supplied. After the death of William E. Dickey on October 17, 1884, in January, 1913, over 18 years after his death, his heirs at law, after due notice to the defendants, asked for leave to amend the complaint in the particulars set out in the notice, and also ask for leave to serve a supplemental complaint, a copy of which was attached and served with the notice. The matter came on for a hearing before Special Judge Holman. The motion was resisted and countermotion made to dismiss the whole action. These motions were based on notice and affidavits. After hearing the motions, the special Judge, Holman, granted plaintiff’s motion and refused defendants’ motion by an order, which should be set out in the report of the case. Erom this order defendants appeal and ask reversal by 16 exceptions, and respondents ask to sustain the order of the Judge upon 7 additional grounds. The exceptions, 1, 2, 3, 4, 5, 6, 7, and 8, of appellants complain of error on the part of his Honor in not holding that the plaintiffs-respondents were guilty of laches,' which laches is fatal and dismissing to the complaint, and that he was in error in' granting the motion asked for in allowing plaintiffs to amend and serve supplemental complaint, and in not finding and holding that W. E. Dickey in his lifetime had abandoned the action, and plaintiffs claiming under him were barred, and in not holding that the commencement of the action alone would not be sufficient, but, without due prosecution of the same, would not toll the statute of limitations in a Court of law, and would not relieve the parties of laches in a Court of equity. AYe think that these exceptions should be sustained.

Twenty-four years have passed since the commencement of this action. There is no satisfactory explanation on the part of the respondents of the delay of 21 years in the prosecution of this suit. ' Some of the parties are dead. The minor defendants never were represented and knew nothing of the proceedings until notice was served on them of application for last order made in the case. A number of witnesses, who could have explained the transactions, are dead, and there is no one to supply their testimony, and it would be a hardship on the defendants to now have to defend and resist a suit that they thought ended and abandoned after this great lapse of time. AYith the recollection and memories impaired, some witnesses dead, it would be almost impossible to find out what the truth is as to the issues involved; there is no question but that the plaintiffs are guilty of laches; and while, as a general rule, negligence, or laches, cannot be imputed to minors, the record shows in this case that the right of action accrued to them after the death of their ancestor, and that he in his lifetime commenced the suit, and the statute under such circumstances would commence to run in his lifetime, and his death would not arrest the statute in favor of his minor children. The record shows that the minor defendants were served only in 1889, and no steps taken to have them properly and 'legally represented before the Court, either by their father or plaintiffs’ attorneys, 'in- pursuance of notice served, and during all the years that the cause was on calendar, or struck off, or restored, they had no one to represent their interests, and whatever was done in no way bound them. The use of due diligence in the prosecution of this cause was upon the respondents; there is an unsatisfactory and inexcusable delay on their part which we think was caused by their laches.

In Hunt v. Smith, 3 Rich. Eq. 484, an unexplained delay of 16 years was held to be fatal. Circuit Judge Eraser, acting Associate Justice, and as the organ of the Court, says in Langston v. Shands, 23 S. C. 152: “It is earnestly urged, however, that the presumption of payment was arrested by the commencement of an action against the executors of Robert Pitts in 1870 on this bond, and (as we understand' the argument) which. was still pending when the claim was presented here, notwithstanding the entry of ‘struck off’ or ‘adjourned off’ in 1877 at the May term of the Court.” That latter expression, which was a very common one used in such cases by the Circuit Judge alluded to, really had no precedent for its use, as far as we are informed, never had any other effect than to induce the clerk to drop the case from the calendar, to be restored without asking leave whenever requested by any party to the action. ' The words had no meaning, and were so regarded by the profession. If the entry “struck off” had been made, and this is the strongest way in which it can be put as against the claim, the case could have been restored to the calendar on motion made within a reasonable time. Nearly seven years had elapsed since the entry was made on Calendar 1 before any further steps were taken to submit this claim to the Court. The case thus stricken from the calendar or “adjourned off” cannot have such dormant life as to justify a revival of it now. In Kennedy v. Smith, 2 Bay, 414, it is said that “all the cases quoted in Blackstone’s Commentaries are strong in point and prove that leaving a chasm in the proceedings, without regular continuance from time to- time, will amount to- a discontinuance. But the lapse of seven years is so great a laches on the part of the plaintiff in this action that nothing on her part can cure it”

In this case we see nothing to excuse the laches, and there is nothing in the way in which suit is brought on this bond and allowed to drop to arrest the presumption of payment; this Court, therefore, holds that there has been, as to this bond, a presumption of payment, arising from the lapse of time a force equal to the bar of the statute of limitations. Boyce v. Lake, 17 S. C. 481, 43 Am. Rep. 618; Shubrick v. Adams, 20 S. C. 49. This same doctrine is laid down in Babb v. Sullivan, 43 S. C. 441, 21 S. E. 277 ; Wagner v. Sanders, 62 S. C. 73, 39 S. E. 950; Person v. Fort, 64 S. C. 508, 42 S. E. 594; Ex parte Baker, 67 S. C. 82, 45 S. E. 143.

His honor, Special Judge Holman, was in error in granting the order he did, and in not granting the motion of defendants to dismiss the action. Order appealed from reversed.

Reversed.