McDaniel v. Atlantic Coast Line R. R.

56 S.E. 543, 76 S.C. 15, 1907 S.C. LEXIS 8

• Court: Supreme Court of South Carolina
• Decided: January 14, 1907
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an action under Dord Campbell’s Act, for the wrongful killing of the plaintiff’s husband.

. The 7th and 8th paragraphs of the complaint are as follows :

“7. And the plaintiff further alleges that the said defendant, David McDaniel, departed this life intestate, leaving as his heirs at law and distributees and solely entitled to his estate, his widow, the plaintiff, Amanda McDaniel, and his father, Adam J. McDaniel, and his mother, Susan McDaniel.

“8. And the plaintiff further alleges that on the second day of January, 1902, she, as the widow of said decedent, was duly appointed by the court of probate for Sumter County, administratrix of the estate of the said David McDaniel, deceased; that she was duly qualified as such administratrix, and is now discharging the duties of her said office, and brings this action in her representative capacity under and in pursuance of the provisions of the Constitution of said State, and the statutes thereof; that is to say, under sections 2852,.2853, 2854 of the codified statutes of said State (1902), which are commonly known as Dord Campbell’s Act and the acts amendatory thereof, and for the use and benefit of the heirs at law and distributees of said decedent entitled under said statutes.”

Upon motion, his Honor, the presiding Judge, ordered that the plaintiff have leave to: amend her complaint, in the following particulars: by striking out the words, in paragraph 7, “and his father, Adam J. McDaniel, and his mother, Susan McDaniel;” and in paragraph 8, by inserting the word “aforesaid,” before the word “heirs;” and by adding at the end' of said paragraph the following words: “To wit: his said widow, the plaintiff, Amanda McDaniel, his sole heir at law and distributee, he having left no children.”

• He further ordered, that this order stand as the said amendment, and that a copy thereof be served upon the attorneys of the defendant.

The defendant appealed upon exceptions which will be set out in the report of the case.

• When the case was called for hearing in the Supreme Court the respondent’s attorneys interposed the preliminary objection that the order is not appealable.

1 . Section 194 of the Code is as follows: “The Court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to' the facts proved.” The effect of the amendment was merely to strike out the names of two of the parties, for whose benefit the action was instituted, and did not involve the merits. Therefore, it was not appealable. But waiving such objection, the appeal must be dismissed, as the Court, by the express terms of the statute, was empowered to grant an order allowing -said1 amendment. This disposes of the 1st, .2d', 3d, and 4th exceptions.

2 The case of Guess & Glover v. R. R., 73 S. C., 267, shows that there is no merit in the 5th exception.

3 And the 6th exception cannot be sustained, as the record does not disclose the fact that the defendant requested permission to answer the amended complaint.

It is the judgment of this Court, that the judgment of . Circuit Court be affirtned.