As a statement of this case I adopt the agreed statement of counsel set forth in the transcript of record as follows:
"This action which was for the recovery of judgment against certain of the defendants, former directors of the Sumter Trust Company, for the mishandling of trust funds, and also against the Receivers of the Peoples State Bank of South Carolina which had been appointed trustee of the trust funds involved, was commenced in July, 1932. The complaint contained two causes of action.
"Thereafter on or about July 29, 1932, the attorneys for the defendants other than the Peoples State Bank of South Carolina and the Receivers served upon the plaintiff's attorneys notice of a motion to require separate statement of the alleged causes of action which were said to be jumbled in each of the causes of action contained in the complaint, it being claimed that each of the said causes of action contained (1) a cause of action for the recovery of funds in which the plaintiff only had a beneficiary interest and also (2) a cause of action in which the plaintiff was interested individually.
"The defendants, Receivers for the Peoples State Bank, filed an answer admitting that it had been appointed as substituted trustee for Elizabeth White and asserting its readiness and willingness to account for the assets in its hands.
"The motion of the defendant-directors to require the complaint to separately state the alleged cause of action by agreement came on to be heard before Judge Dennis, Presiding Judge, at Sumter, S.C. and was heard by him on or *Page 48 about October 26, 1932. As a result of this hearing Judge Dennis passed an order dated October 26, 1932, granting the motion and directing the complaint to be amended accordingly, but without specifying any time within which the said amended complaint should be served. Copy of this order was duly served upon plaintiff's attorneys. (There was no appeal from this order.)
"The proceedings for the removal of the Peoples State Bank as Trustee of the fund involved, which were referred to in the complaint herein, was carried through in the Court of Common Pleas for Sumter County and a final decree rendered therein on November 2, 1932, which was duly filed in the office of the Clerk of Court for Sumter County on November 17, 1932, appointing the plaintiff Elizabeth White as trustee of the trust funds referred to in the complaint. The bond executed by the plaintiff as trustee therein required was dated on the 18th day of November, 1932, and was filed in the office of the Judge of Probate for Sumter County on the 18th day of November, 1932.
"Thereafter on or about the * * * day of September, 1933, the attorneys on behalf of the defendant-directors served the plaintiff's attorneys with notice of motion to dismiss the complaint upon the ground that the plaintiff had failed to serve the amended complaint as required by Judge Dennis' order of October 26, 1932, this notice of motion being accompanied by an affidavit signed by R.D. Epps, one of the counsel for the said defendants.
"On September 30, 1933, plaintiff's counsel prepared and sent to the said defendants' attorneys by letter dated September 30, 1933, an amended complaint amended as stated pursuant to Judge Dennis' order, of which however said defendants' counsel declined to accept service at the time pending the final disposition of their motion to dismiss the said complaint.
"This motion thereafter came on to be heard before Judge M.M. Mann, presiding Judge, at Sumter, S.C. on October *Page 49 17, 1933. At this hearing there was filed an affidavit by Irvine F. Belser, one of the counsel for the plaintiff. As a result of this hearing Judge Mann passed an order which was duly filed granting the defendants' motion to dismiss the complaint. Copy of this order was duly served upon plaintiff's counsel.
"Thereafter and within due time notice of intention to appeal from the said order of Judge Mann dated October 17, 1933, dismissing the summons and complaint, was served upon the attorneys for the said defendants, and this case now comes before this Court upon the appeal from the said order upon exceptions hereinafter stated."
The notice served by counsel for the defendants, referred to above, asking for an order requiring the complaint to be made more definite and certain, reads as follows:
"To Messrs. Melton Belser, Plaintiff's Attorneys:
"You are Hereby Notified that the defendants, except the Bank and the Receivers, will move before His Honor Judge Philip H. Stoll, at his Chambers at Kingstree, S.C. at ten o'clock A.M. on Friday, August 5th, 1932, or as soon thereafter as counsel can be heard, for an order requiring you to make your complaint in the above stated cause more definite and certain in the following particulars:
"I. To state separately the two causes of action which are jumbled in the first cause of action, to wit:
"(a) A cause of action against the defendants for the alleged mishandling and loss of a fund in which the plaintiff had only a beneficial interest for life, with remainder or reversion to other parties, and for which it is not shown that she is the proper custodian.
"(b) A cause of action against the defendants for the alleged mishandling and loss of a fund belonging to the plaintiff personally.
"II. To state separately the two causes of action which are jumbled in the second cause of action, to wit: *Page 50
"(a) The alleged negligent and reckless management of the affairs of the Sumter Trust Company, whereby there is alleged to have been lost a fund in which the plaintiff only had a beneficial interest for life with remainder or reversion to other parties, and for which she is not shown to be the proper custodian.
"(b) The alleged negligent and reckless management of the affairs of the Sumter Trust Company, whereby there is alleged to have been lost a fund belonging to the plaintiff individually.
"M.M. WEINBERG, "EPPS LEVY, "R.O. PURDY,
"Attorneys for the Defendants, except the Bank and the Receivers."
(It is stated in the record that the above order was served July 29, 1932.)
This motion was heard by Judge Dennis by consent of counsel who, upon due consideration of the same, issued the following order:
"ORDER "This matter was noted to be heard before his Honor Judge Philip H. Stoll, but by consent of counsel, the same was heard by me in open Court.
"This is a motion to require the plaintiff to state separately the two causes of action, which are jumbled in the first cause of action in the complaint, and also to state separately the two causes of action which are jumbled in the second cause of action stated in the complaint.
"After hearing argument, I am of the opinion that the motion should be granted.
"It is therefore ordered, that the plaintiff amend her complaint by stating separately the two causes of action which are jumbled in the first cause of action, to wit:
"(a) A cause of action against the defendants for the alleged mishandling and loss of a fund in which the plaintiff *Page 51 had only a beneficial interest for life with remainder or reversion to other parties, and for which it is not shown that she is the proper custodian.
"(b) A cause of action against the defendants for the alleged mishandling of a fund belonging to the plaintiff personally.
"And also to separate the two causes of action which are jumbled in the second cause of action, to wit:
"(a) The alleged negligent and reckless management of the affairs of the Sumter Trust Company, whereby there is alleged to have been lost a fund in which the plaintiff only had a beneficial interest for life with remainder or reversion to other parties, and for which she is not shown to be the proper custodian.
"(b) The alleged negligent and reckless management of the affairs of the Sumter Trust Company, whereby there is alleged to have been lost a fund belonging to the plaintiff individually.
"After service of the complaint as so amended, the defendants shall have twenty days within which to reply, demur or otherwise plead thereto."
After the lapse of time, above stated, counsel for the defendants gave notice to the plaintiff's counsel, in September, 1933, that they would move before the Court to have the complaint dismissed upon the ground that the plaintiff had failed to serve the amended complaint as required by Judge Dennis' order. That notice, omitting formal parts, reads as follows:
"You are hereby notified that the defendants will move before His Honor, Judge M.M. Mann, in open Court at Sumter, South Carolina, at ten o'clock, A.M., on Tuesday, October 3, 1933, or as soon thereafter as counsel can be heard, for an Order dismissing the Summons and Complaint in the above styled cause on the ground that the plaintiff has failed to comply with the order heretofore made and filed in this cause by his Honor, Judge E.C. Dennis, requiring *Page 52 the plaintiff to amend her complaint by stating separately the causes of action jumbled therein."
In connection with the above notice, there was also served the following supporting affidavit:
"Personally appeared R.D. Epps, who being duly sworn, deposes and says:
"I am one of the attorneys representing the defendants in the above styled cause, and as such have had charge of the handling of this case.
"The Complaint originally contained four causes of action which were jumbled into two, and upon a duly noted motion His Honor, Judge E.C. Dennis, made and filed with the Clerk of Court for Sumter County on October 28, 1932, his order requiring the causes of action set forth in the complaint to be stated separately in an amended complaint.
"On October 28, 1932, deponent then mailed, with proper postage prepaid to Messrs. Melton Belser, Attorneys for the Plaintiff, and addressed to them at Columbia, South Carolina, a letter as follows:
"`In Re: Elizabeth White v. H.J. Harby, et al.
"`Gentlemen:
"`This is to notify you that His Honor, Judge E.C. Dennis has on this the 28th day of October, 1932, filed with the Clerk of Court for Sumter County his order requiring the causes of action set forth in the complaint in the above stated case to be separately stated, and the complaint thus amended served upon the undersigned. We are enclosing herewith a copy of said order for your convenience.
"`Very respectfully,
"`EPPS LEVY, "`By R.D. EPPS.'
"Deponent enclosed in said letter a copy of said order.
"That promptly thereafter, deponent received in the mail a letter from the plaintiff's attorney as follows: *Page 53
"`October 29, 1932.
"`Messrs. Epps Levy, "`Attorneys at law, "`Sumter, S.C.
"`In re: Elizabeth White vs. Harby, et al.
` `Dear Sir:
"`We acknowledge receipt of your letter of the 28th in the above matter, the contents of which have been noted.
"`Very truly yours,
"`MELTON BELSER, "`By IRVINE F. BELSER.'
"That although nearly eleven months have elapsed, the attorneys for the plaintiff have not served deponent with any amended complaint, and deponent is informed by the other attorneys representing the defendants, and believes the same to be true, that they have not been served with the said amended complaint, and deponent is informed and believes that none of the defendants have been so served.
`"That it is of vital importance to the defendants that this case be promptly tried, as the matters complained of in the complaint occurred many years ago, and a number of the defendants are advanced in years, the witnesses who must necessarily appear in their behalf are being scattered, and as the Court well knows, the defense is made much more difficult by the long lapse of time, and the interests of the defendants, in deponent's honest opinion, have been greatly injured by the failure of the attorneys for the plaintiff to amend and serve the complaint as required by the Court.
"R.D. EPPS.
"Sworn to before me this 23rd day of September, 1933. Louline Jones [LS], Notary Public for S.C."
Counsel for the plaintiff, at the hearing on said motion and in opposition thereto, presented the following affidavit:
"Personally appeared before me Irvine F. Belser, who being duly sworn deposes and says: *Page 54
"That he is one of the attorneys for the plaintiff in the above entitled action and has been in active charge of the handling of the case.
"That the order heretofore made in the above case by the Honorable E.C. Dennis and dated on October 26, 1932, requiring the amendment of the complaint and the separate statement of the causes of action, did not provide any limitation of time within which the said amended complaint should be served, and that deponent knows of no rule of law or practice which prescribes any particular time under the circumstances of this case within which the said amended complaint should have been served.
"That moreover at the time of the service of the original complaint herein there was then about to be instituted a suit for the removal of the People's State Bank of South Carolina as Trustee under the will of Anthony White, which Bank was then in the hands of Receivers, and the substitution of the plaintiff Elizabeth White as such Trustee, that this fact was shown in the original complaint itself, that it was necessary for this proceeding for a new Trustee to be completed before the amended complaint could be served or the order complied with, and the said order requiring the service of the amended complaint was made in contemplation of this situation.
"That the failure of the plaintiff to file and serve the amended complaint was due partly to the fact that it took several months to complete the said proceeding for the appointment of the new Trustee under the will of Anthony White, and partly to the fact that deponent was extremely busy thereafter almost continuously, that in addition to his ordinary private practice deponent has during said period been handling for the State of South Carolina three difficult and long drawn out rate cases, one against the Broad River Power Company, one against the Carolina Power Light Company, and another against the Southern Bell Telephone and Telegraph Company; that furthermore there *Page 55 has been pending another case in the Court of Common Pleas for Sumter County, namely the case of Winn v. the same defendants, involving very much the same questions of law and fact, and deponent has considered it to the interest of all parties concerned not to press this suit until the principle of law applicable should have been finally determined by the Supreme Court of South Carolina, and that the said case was argued orally before the South Carolina Supreme Court at the October, 1933, term (171 S.C. 301,172 S.E., 135).
"That defendants' counsel never previous to the notice of * * * September 1933, called upon deponent for the service of the amended complaint or made any suggestion either orally or otherwise that the said amended complaint should have been served, and that shortly after the service of the said notice, to wit, on September 30, 1933, deponent did prepare and serve upon defendants' counsel a copy of the amended complaint, amended as deponent conceives and served in accordance with Judge Dennis' order.
"That as deponent is informed and believes plaintiff in this case has a valid and meritorious case against the defendants for the loss of trust funds amounting to several thousands of dollars; that in a substantially similar case, to wit, the case of United States Fidelity Guaranty Company against the same defendants, the defendants have already been held liable and required to pay approximately $10,000.00 for the loss of trust funds [see Strauss v. U.S. Fid. Guaranty Co. (C.C.A.), 63 F.2d 174], that defendants have suffered no real injury by reason of the delay in service of the amended complaint, that they have had and now have an opportunity to perpetuate their testimony at any time they see fit; that it would be a great hardship upon the deponent's client to dismiss the complaint under these circumstances, and that deponent believes that the said defendant's motion should be refused.
"IRVINE F. BELSER. *Page 56
"Sworn to before me this 17th day of October, 1933. Valeria Brown [L.S.], Notary Public for S.C."
This motion was heard before his Honor, Judge M.M. Mann, on the record in the cause, including the above-mentioned notices and affidavits, and upon due consideration of the facts presented in the case his Honor, Judge Mann, held that the defendants were entitled to have the said motion granted and, in the exercise of his discretion, issued an order dismissing the complaint. As stated, from this order the plaintiff has appealed to this Court.
In the notice of motion to dismiss, it was stated that the motion would be based upon the ground that the plaintiff had failed to comply with the said order made and filed in the cause by Judge E.C. Dennis, requiring the plaintiff to amend her complaint by stating separately the causes of action jumbled therein. The complaint contained two causes of action and the order of Judge Dennis required the plaintiff to state separately the causes of action jumbled under each of the causes mentioned. The said notice to dismiss the summons and complaint did not state in what particular the said order of Judge Dennis was not complied with, and there was no motion made by plaintiff's counsel to require the defendants to state in what particular the order of Judge Dennis was not complied with. It appears from the record, however, that at the time of the serving of the notice to dismiss the summons and complaint the plaintiff had not served any paper of any nature purporting or intended as a compliance with Judge Dennis' order. After the service of this notice to dismiss upon plaintiff's counsel the plaintiff did serve what is styled an amended complaint, and this was before Judge Mann when the motion to dismiss was heard. In the order issued by Judge Mann in the cause his Honor, Judge Mann, stated, "This matter comes on before me in open Court upon a duly noted motion on behalf of the defendants, to dismiss the summons and complaint in this case on the ground that the plaintiff has failed to comply *Page 57 with the Order of His Honor, Judge E.C. Dennis, which was filed on October 28, 1932, requiring the plaintiff to amend her complaint by stating separately the causes of action jumbled therein," and further stated that after hearing argument his Honor was of the opinion that the motion should be granted. Therefore, it appears that his Honor held, in effect, that the plaintiff had not complied with Judge Dennis' order in amending the said complaint as required.
As appears from the above record, the order of Judge Dennis, which was promptly served after the same was issued, bears date October 26, 1932, and the paper served as the amended complaint bears date September 30, 1933. In the order issued by Judge Mann, his Honor held that the plaintiff should have complied with the order of Judge Dennis within 20 days after notice of the same; that 20 days was a reasonable time within which to comply with said order, and, further, under the facts of the case, having failed to comply with the order within the said period of 20 days the Court, within the exercise of its discretion, would grant the motion to dismiss the summons and complaint. In the said order of Judge Mann, his Honor calls attention to the nature of the charges made in the complaint against the defendants, and held that the defendants were entitled to a prompt hearing on those charges. His Honor also calls attention to the advanced age of a number of the defendants and mentioned that three of them had died since the closing of the Sumter Trust Company, and that the delay occasioned by the failure of the plaintiff's attorneys to promptly comply with the said order of Judge Dennis had seriously injured the interest of the defendants. In this connection this Court takes judicial notice of the fact that since the hearing of the appeal in this Court another of the defendants, Honorable R.O. Purdy, former Judge of the Circuit Court, of this State, has died.
As bearing on the question of time within which the order of Judge Dennis should have been complied with, we *Page 58 call attention to Rule 62 of the Circuit Court, which reads as follows:
"Time for complying with orders. — In all cases where a motion shall be granted on payment of costs or on theperformance of any condition, or where the order shall require such payment or performance, the party whose duty it shall be to comply therewith shall have twenty days for that purpose unless otherwise directed in the order, but where costs to be adjusted or to be paid the party shall have fifteen days to comply with the order after the costs shall have been adjusted by the Clerk on notice unless otherwise directed." (Italics added.)
It is our opinion, under this rule, attention being called to the italicized words, it was the duty of the plaintiff, in the absence of a time being stated in the order of Judge Dennis, to comply with said order within 20 days' time. Of course, the plaintiff had the right to procure an order in the meantime extending the time to comply if additional time was needed, and having failed to ask the Court for additional time, and having failed, also, to get a written agreement with counsel for an extension of time to serve the required amended complaint, it was within the discretion of Judge Mann, when his Honor heard the matter, to dismiss the summons and complaint for having not served the required amended complaint within the said 20 days.
In this connection we call special attention to the cases of Long v. Hunter, 48 S.C. 179, 26 S.E., 228; Savagev. Sanders, 51 S.C. 495, 29 S.E., 248; and McLeod v.American Publishing Company, 131 S.C. 15,127 S.E., 212; and Brown v. Easterling, 59 S.C. 472, 38 S.E., 118. Clearly, the defendants were within their rights in moving to dismiss the said summons and complaint upon the grounds referred to above and we cannot hold, under the record in the case, that his Honor abused his discretion in granting the said motion. *Page 59
Therefore, I think the order appealed from should be affirmed.