Price v. Hayes

Citations

• 99 S.C. 66
• 82 S.E. 990

Syllabus

<p>Abatement akd Revival of Actions. Practice. Rule to Show Cause.</p> <p>1.The rule that the return in a mandamus proceeding, if not traversed, must be accepted as true, does not apply to the return to a rule to show cause why an action should not be revived after the death of a party.</p> <p>2. A traverse is not necessary to a return to an order to show cause, why leave to revive or continue an action should not be granted the successor in interest of the deceased plaintiff, in order to question the facts therein alleged.</p> <p>3. On motion by the successor in interest to rights of a deceased plaintiff, under Code Civil Proc., sec. 170, for leave to continue or revive the action, the Court will confine its consideration to the competency of the movant to revive or continue the action, and the sufficiency of his application without considering defenses or objections to the action on its merits.</p> <p>4. Where an order reviving an action in the name of the assignee of the deceased plaintiff did not attempt to decide any of the material and substantial issues, but reserved those issues to be tried and determined later, and gave defendants the right to demur or answer or to move to have any of the allegations of the complaint made more definite or certain or to strike out any part thereof, the granting of the order did not deprive defendants of any substantial right.</p>