Rothrock, Collector v. Oakman , 195 S.C. 123 ( 1940 )

April 8, 1940. The opinion of the Court was delivered by This appeal is from an order dated February 16, 1940, overruling a demurrer to the complaint in the action, which was commenced in the Spartanburg County Court on July 7, 1939. Also involved is the appeal of the defendant from an order of the same Court settling the "case" (Transcript of Record) for the appeal.

The order overruling the demurrer directed that judgment be entered against defendant in the amount sued for, and costs. Upon the filing of such the defendant, appellant here, served notice of a motion for modification of the order to the end that the movant be allowed to answer; and there were served with the notice an affidavit and exhibits thereto. The motion for modification was granted, whereby the portion of the order rendering the money judgment was rescinded and the defendant was given leave to answer; this by supplemental order dated February 24, 1940.

Although the notice of appeal to this Court refers to the original order and the supplemental order, the latter was favorable to the appellant and he very naturally has not excepted thereto or otherwise attacked the propriety of it in any particular. But he insisted upon inserting in the record for appeal the motion papers upon the supplemental order, which the trial Court, by the allowance of amendments proposed by respondent, refused to permit. From the last-mentioned order "settling the case" and dated April 23, 1940, the defendant also appealed, but we think his exceptions thereabout are not well founded and they are overruled. It is necessary only to point out that no exception challenges the correctness of the supplemental order so that it need not be considered by this Court, wherefore the proceedings thereon have no proper place in the record for this appeal. See the rules of this Court and the decisions found in West's Digest, Appeal and Error, 559, 560.

All of the numerous exceptions of the appellant have been carefully considered but are found to be without merit. Discussion of them would add nothing to the well-considered order dated February 16, 1940, of his Honor, the County Judge, which is adopted as a part of the judgment of this Court and will be reported. For a full understanding of it the complaint will also be reported.

All exceptions are overruled and the appeal dismissed.

MR. CHIEF JUSTICE BONHAM, MESSRS. JUSTICES BAKER and FISHBURNE and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.