As briefly as possible I propose to state the reasons why I think the order of the Circuit Court should be affirmed. As the action is dismissed for laches in the prosecution thereof after it was commenced, the delay, the facts and circumstances causing it, and the consequences of it should all be kept clearly in mind. Therefore, it is necessary to state the history of the case. It is an action to recover real estate and the rents and profits thereof, commenced on March 4, 1889, by W. E. Dickey, D.D. Chambers, and Marietta Cornwell, as plaintiffs, against A.E. Orr, William A. Orr, Hartwell Orr, and "Sis" Orr, as devisees of the land in dispute, under the will of John Dickey, and F.H. Barber and W. P. Ferguson, as executors of the will of John Dickey. It *Page 225 is alleged that John Dickey held the title to the land as trustee for the plaintiffs; that for a number of years prior to his death, he collected the rents and profits thereof, and did not account for them; that he devised the land to A.E. Orr for life, with remainder to her children, William Hartwell, and "Sis," who are infants under the age of 14 years, and that A.E. Orr is in possession thereof.
The case was docketed at the April term, 1889, on Calendar 2, and was continued on that calendar until the October term, 1897, when the following entry was made by the presiding Judge: "Stricken off, with leave to restore." It was dropped from the calendar, but was restored thereto at the April term, 1900, and has been continued thereon ever since.
By consent order, dated April 18, 1889, the issues of law and fact were referred. A.E. Orr and the executors of John Dickey demurred to the complaint on the ground that several causes of action were improperly united therein. By order dated November 30, 1891, the demurrer was sustained, and the plaintiffs were required to elect which cause of action they would try, and were given leave to apply for an order to amend their complaint accordingly. On February 12, 1892, the plaintiffs served notice that they elected to try the cause of action against the Orrs for the recovery of the land, and that they would apply at the next term for an order allowing them to amend their complaint accordingly. It appears that nothing further was done in the cause, until the order which is the subject of this appeal was applied for, in January, 1913. In the meantime, on October 17, 1894, W.E. Dickey, one of the plaintiffs, died, intestate, leaving as his heirs his widow and two infant children, the plaintiffs, Frances M. McAuley and William D. Dickey, both of whom are still infants. His widow married Marion E. Audrey, and died, intestate, leaving her husband and two children by him, Claire and Inez, both of whom are infants. On January 24, 1913, the children of *Page 226 W.E. Dickey, by their guardian ad litem, and Marion E. Audrey, and his children, by their guardian ad litem, moved for an order substituting them as parties plaintiffs in the place of W.E. Dickey, and for leave to file a supplemental complaint. At the hearing of this motion, the defendants moved to dismiss the complaint for failure to prosecute the action. After hearing the affidavits pro and con, the Court granted the plaintiffs' motion. From that order this appeal was taken.
The defendants objected to the order on two grounds. The first is that W.E. Dickey agreed with Mrs. Orr, a short time before his death, that he would drop the action. In the first place, Dickey could not have discontinued the action, except by consent of his coplaintiffs. Chambers says he consented, but Mrs. Cornwell swears she never consented, and there is no evidence that she did. In the next place, the evidence is wholly insufficient to sustain the allegation that Dickey ever made any such agreement. There are only two witnesses to the alleged agreement, Mrs. Orr and Chambers. Mrs. Orr's testimony is clearly incompetent under section 438 of the Code of Procedure. Chambers says, in his affidavit dated March, 1913, that not long before his death Dickey told him that he was willing to drop the case, and, if it was agreeable to him, it would be dropped; that he agreed, and thought it had been dropped. But evidently he was mistaken. Because, in an action, commenced in 1894, by Chambers and Dickey against F.H. Barber, as executor of the will of John Dickey, for the rents and profits of the land in dispute, Chambers testified, on May 17, 1899, which was nearly five years after Dickey's death, as follows: "Mr. Orr is my mother. I know she claims this land under the will of John Dickey. W.E. Dickey said if Mr. Orr would pay him what he owed him in the store he would abandon any suit for the land, and witness said, if he would do so, he (witness) would also abandon the suit, as Mrs. Orr was his mother. * * * Mr. *Page 227 Orr owed W.E. Dickey several hundred dollars on account of store account. It has not all been paid, and the suit for the lands has not been abandoned." It appears from this that there was some effort to compromise the case, and Mr. W.B. Wilson, Sr., who was one of the attorneys for the plaintiffs, and had active charge of the case, swears that he was advised of some efforts to compromise, and for that reason the case was not actively pressed to trial. But it is equally clear, from the testimony of Chambers, that as late as May, 1899, no compromise had been effected, and the action had not then been abandoned. Indeed, I do not see how any compromise could have been made after the death of W.E. Dickey, because his infant heirs were not before the Court.
The objection on the ground that defendants have lost valuable evidence by the delay is equally untenable. The principal evidence which they claim to have lost is that of R.L. Crook, who died in 1890, W.E. Dickey himself, who died in 1894, and J.C. Dickey, who died in 1895. Surely no one would contend for a moment that laches could be imputed to the plaintiffs up to the time of the death of W.E. Dickey, especially in view of the testimony that the parties were trying to effect a compromise, which is considered sufficient to excuse the laches of a plaintiff in bringing an action. 18 A. E. Enc. L. (2d ed.) 112. It is common practice in this State to continue cases on the calendars pending negotiations for a compromise.
Let us next consider what effect, if any, striking the case from the docket should have in determining the rights of the parties. At the time this was done, Dickey had been dead three years, and his infant children had succeeded in part to his interest in the land and in the action for its recovery, but they had not been made parties. No order should have been made in the cause until they were made parties and properly represented. Again, a Judge has no right to strike a cause from the docket, except by consent *Page 228 of the parties, or upon motion, after notice and a hearing. In this case there is no pretense that it was stricken off by consent or upon motion. Therefore, the entry, "Stricken off with leave to restore," was without authority of law. But, even if the entry was properly and regularly made, what was its effect? Nothing more than that any party to the cause might have it restored to the docket at pleasure. Why should a party be required to move for leave to restore, when leave to restore is already incorporated in the order to strike off? In the case cited by Mr. Justice Watts, the order was "struck off." There no leave to restore was made a part of the order. Here it was. Therefore this case was properly restored to the calendar, without motion, in April, 1900, and has been properly continued on it ever since.
The question then arises: What are the rights of the parties in such a case? At common law the death of a party before trial abated the action, and his representatives had to commence a new action. But the inconvenience and hardship which resulted from this rule have been remedied by statutes. Section 170 of the Code of Procedure provides that no action shall abate by the death of a party, if the cause of action survive; and, in case of death, the Court, on motion, at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by his successor in interest. The same section further provides that, at any time after the death of a party plaintiff, the Court, upon notice to such person as it may direct, upon application by any person aggrieved, may, in its discretion, order that the action be deemed abated, unless the same be continued by the proper parties, within a time to be fixed by the Court, not less than six months nor exceeding one year from the granting of the order. This section has been construed and applied by this Court in several cases. *Page 229
In Parnell v. Maner, 16 S.C. 348, plaintiff commenced an action against J.W. Lawton, on March 5, 1868, on a promissory note. The case was docketed for trial, and remained on the docket, until the June term, 1870, when it was marked on the docket, "abated by the death of the defendant;" Lawton having died on March 8, 1870, leaving a will of which Maner was executor, but he did not qualify as such until 1879. On October 27, 1880, 12 years after the action was commenced, plaintiff moved for leave to file a supplemental complaint, which was refused. On appeal, this Court held that, under the provision of the Code above mentioned, the filing of a supplemental complaint in such case is a matter of right, and that it is not necessary to obtain leave of the Court to do so, and that the entry on the docket, "Abated by the death of the defendant," was clearly erroneous, and should be disregarded. So, I think, the entry in this case, "Struck off with leave to restore," was clearly unauthorized, and should be disregarded. In that case, as in this, the objection was made that plaintiff had been guilty of laches, but the Court held that he had not, but it was also held that the right to file a supplemental complaint in such a case cannot be defeated by laches, because the Code prescribes no limit of time within which an action may be so continued, and further because a defendant in such a case may protect himself against unreasonable delay on the part of the representatives of a deceased plaintiff in continuing the action by supplemental complaint, under the last provision of that section (that is, by obtaining an order that the action shall be deemed abated), unless continued by the proper parties within the time therein prescribed. Mr. Justice McIver, speaking for the Court, said: "It was argued here that, by lapse of time, the plaintiff has lost the right which he once may have had to continue the action by supplemental complaint against the representative of the deceased defendant. To say nothing of the fact that a large part of the delay *Page 230 was occasioned by the failure of the present defendant to qualify as executor of the deceased defendant, it will be observed that, while section 144 does limit the time within which an action may be continued by motion to one year, it does not prescribe any limit to the time within which it may be continued by supplemental complaint after the expiration of one year. In New York it has been held, in the case of Bornsdorff v. Lord, 41 Barb. 211, that the supplemental complaint provided for by section 121 of the Code of that State stands in the place of the bill of revivor under the old system of equity pleading; and in a note to the case of Pendleton v. Fay, 3 Paige (N.Y.) 205, the case of Lyle v. Bradford, 7 T.B. Mon. (Ky.) 115, is cited to sustain the proposition that `lapse of time from filing the original bill, omission to serve the original defendant with process, and a final disposition of the cause as to the other defendants are no grounds of objection to the bill of revivor in such case.' In addition to this, section 144 of our Code contains a provision by which a defendant may protect himself from unreasonable delay on the part of the representatives of a deceased plaintiff in continuing the action by supplemental complaint; and, while there is no express provision in that section of the Code by which the representatives of a deceased defendant can protect themselves from unreasonable delay on the part of the plaintiff in continuing the action, yet it has been held in New York that in such a case the representatives of a deceased defendant may prevent unreasonable delay on the part of the plaintiff in continuing the action against them by moving for an order discontinuing the action, unless the plaintiff shall, within a specified time, consent to an order continuing the action. Keene v. La Farge, 16 How. Prac. (N.Y.) 377."
To the same effect is Arthur v. Allen, 22 S.C. 432, where an action, commenced in October, 1867, was continued by supplemental complaint filed 15 years afterwards, *Page 231 to wit, in June, 1882. In Best v. Sanders, 22 S.C. 589, a suit for partition was commenced in 1854. In February, 1855, the chancellor declared the rights of the parties and ordered the writ to issue. The writ was issued, but, on account of disagreement among the commissioners, no return was ever made. In February, 1856, the cause was marked "ended" on the docket. In 1883, 29 years after the action was commenced, and 23 years after the original plaintiff, who was an infant when the action was commenced, had attained her majority, which was in 1860, she moved for leave to file a supplemental complaint against the original parties and the heirs of those deceased. Her motion was refused. On appeal, the order was reversed, and this Court held: "That the evidence showed that the entry on the docket, if not a mistake, was premature, and that the case was never ended; that, under the old equity practice, the right to revive would exist without any well-defined limit in point of time, and that it might have been accomplished by a bill in the nature of a bill of revivor and supplement; that this right has been substantially preserved by the Code of Procedure (section 142); that this is a question relating merely to pleading, and does not affect the merits, but there is no authority for applying the statute of limitations to the right to institute such proceedings, although the relief therein demanded may be barred."
In Bryce v. Massey, 35 S.C. 127, 14 S.E. 768, the action was commenced in 1872 by T.W. Dewey. It remained on the docket until the death of Dewey, when it was dropped on account of his death. In 1882 or 1886 (there is a discrepancy in the report of the case as to the date), Bryce was appointed administrator of Dewey's estate and filed a supplemental complaint. Massey contended that, as the supplemental complaint was not filed until more than 10 years had elapsed after the death of Dewey, the lapse of time was a bar to the right to revive the original action. Mr. Chief Justice McIver, speaking *Page 232 for the Court, said: "We think it only necessary to refer to the cases of Parnell v. Maner, 16 S.C. 350, and Best v.Sanders, 22 S.C. 589, to show that the plaintiff was not barred by lapse of time from filing his supplemental complaint."
It seems to me that these cases are conclusive of the case at bar. I do not see how the Court can deny the plaintiffs the right to file their supplemental complaint without overruling them. While I do not contend that, under the construction given to the provisions of section 170 of the Code by this Court in the cases above cited, an infant would have any rights superior to those of an adult, because the same right is given to all litigants by the statute, yet if that were so, and the equitable doctrine of laches were applicable, it seems to me that the fact that the plaintiffs were and are still infants would prevent the application of that doctrine. For I think the principle is too well settled to require argument or citation of authority that laches will not be imputed to infants, unless required by statute or some positive rule of law. "In the absence of any positive provision of law to the contrary, an infant will not be prejudiced by lapse of time, nor is laches ordinarily imputable to infants to their prejudice." 22 Cyc. 512. In each of the cases above cited, in which the defense of laches was invoked and denied, the parties were adults, and, in at least one of them, a much greater time had elapsed than in the present case.
In Best v. Sanders it was squarely ruled that there is no authority for applying the statute of limitations to the right to file a supplemental complaint, and the same principle was reiterated in Bryce v. Massey. In that case, if the plaintiff had not been allowed to continue the action by supplemental complaint, he could not have recovered, for a new action would have been barred by the statute. The principle of these cases was reaffirmed by this Court inSims v. Davis, 70 S.C. 374, 49 S.E. 872. *Page 233
It follows, therefore, that those cases in which the right to commence an action has been held to be barred by laches are not applicable where the right of a party to carry it on, after it has been commenced without laches, is invoked. Of course, if the original plaintiffs were guilty of laches, in commencing their action, that defense would avail against their successors in interest, even though they are infants, as well as it would against the original plaintiffs, for laches in commencing the action would have been a bar to it, when it was commenced. But there is no contention here that the action is barred by laches in commencing it.
In the case cited by Mr. Justice Watts, the parties weresui juris, and they were denied relief because they were guilty of laches in commencing the action or proceeding.
MR. JUSTICE GAGE did not sit in this case.