Mayo v. Spartanburg &c. R. R.

Citations

• 43 S.C. 225
• 21 S.E. 10
• 1895 S.C. LEXIS 154

Syllabus

<p>1. Docket — Second Appeal. — On a second appeal, any party has a right to call for a hearing in the Supreme Court with reference to other causes in the order of the date of the filing of the first appeal; and such right is not prejudiced by the failure of the clerk to docket the cause as of its proper number.</p> <p>2. Amendments to Complaint — Cases Criticised. — This court declined to declare error in the refusal of the Circuit Judge to permit an amendment to a complaint, whereby a cause of action under the statute (1 Rev. Stat., (11688), for injury done by fire communicated from a railroad right of way, would be changed into an action for negligent burning as common law, the action having been commenced within, but the amendment moved for after, twelve months from the time of the injury, and the law giving to a judgment obtained on either cause of action a priority over all other liens in cases where action is commenced within twelve months thereafter. Lilly v. Railroad Company, 32 S. C., 142, and Wallace v. Railroad Company, 31 S. C., 335, compared and distinguished.</p> <p>3. Ibid. — Per Pope, A. J. The Circuit Judge was in error in refusing to allow an amendment to a complaint, in so far as he based his refusal upon the ruling that an allegation of defendant’s negligent act in starting a fire, and of want of due care in putting out the fire on its right of way, stated a cause of action under the statute and also at common law, as such result, if this were so, could have been guarded against in the order of amendment.</p>