Supreme Court of South Carolina, 1917

Haselden v. Hamer

Supreme Court of South Carolina · Decided March 23, 1917 · Fraser, Watts, Gary, Hydrick, Gage

92 S.E. 387; 107 S.C. 164; 1917 S.C. LEXIS 95 (South Eastern Reporter)

Counsel

Messrs. Gibson Muller, Haynsworth Haynsworth and Stevenson Prince , for appellant. Messrs. Haynsworth Haysworth , submit: It was error to allow the plaintiff to set up by way of supplemental complaint the matters alleged therein, and it was likewise error to consider these matters as a ground of relief in this action , and cite as to: (1) The nature of the supplemental complaint: Code Civ. Proc., sec. 228; 21 S.C. 442 ; 31 S.C. 204 ; 60 S.C. 140. (2) Whether the facts as alleged and proved in this case can be set up by way of supplemental complaint in this action, being inconsistent with allegations in original complaint: 2 Mills 228; 155 U.S. 13 ; 31 Mich. 309 ; 111 Mass. 270 ; 36 S.C. 424 ; 12 S.C. 50 ; 95 N.W. 344. The matters set up in the supplemental complaint were concluded by the decision of the Supreme Court: and cite as to res judicata: 17 S.C. 189 ; 52 S.C. 174 ; 105 S.C. 147 ; Bail. Eq. 330; 17 S.C. 35 ; 100 S.C. 483 ; 65 S.C. 410 ; 37 S.C. 150 ; 83 S.C. 575 . Assuming that these matters were not concluded, has a conversion of the stocks been shown, and if so, what damages have resulted? As to conversion: 102 Am. St. Rep. 30. Liquidation of corporation by majority of stockholders: Civil Code, secs. 2812, 2813. The exchange of stock, with the understanding that the exchange should be cancelled if Haselden was not satisfied, could not in the nature of the case operate to deprive Haselden of any right: Jones Pledges, secs. 507, 509, 571; 11 Fed. 115; 10 Am.Rep. 282; Jones Collateral Securities, secs. 571 and 571a; 64 S.W. 262 and 264; 63 S.E. 1115; 43 L.R.A. 737. The pledgee of stock has the right to cause the stock to be transferred to him and to collect dividends and vote the stock: 11 S.C. 486 ; 70 S.C. 432; 22 A. E. Enc. 907. Mr. W.F. Stevenson , for appellant, submits: After the Court decides a case and remands it for a specific purpose, to wit, to restate an account, the lower Court cannot over objection allow amendments to change the issues, and do something else: 101 S.C. 584; 8 S.C. Eq. 330; 105 S.C. 147 . Laches as a defense need not be specifically pleaded, but may be considered at the hearing as a matter affecting the merits of the claim in the judicial conscience: 94 U.S. 806 ; 23 L.Ed. 324 ; 124 U.S. 183 ; 31 L.Ed. 396 ; 62 S.C. 73 ; 39 S.E. 950 ; 70 S.C. 171. Messrs. Willcox Willcox, Mullins Hughes and S.M. Wetmore , for respondent, submit: Facts occurring after commencement of action can only be brought before the Court by supplemental pleadings and not by amendment of the original pleadings: Code Civ. Proc., sec. 228; 17 S.C. 123 ; 47 S.C. 190 ; 94 S.C. 16 . Supplemental bills are brought upon discovery of any new matter, since the original bill and answer, and the proceedings had in the cause, in order to supply the defect in some former proceedings, where it is too late to amend the same: 31 Cyc. 499, 500; 1 Del. Ch. 88 ; Dec. Dig. "Equity," par. 295g; 42 Wis. 233 ; 19 Cent. Dig., par. 582j; Colm. 1039 and 1041. If the original bill is well founded, it is then permissible to set forth ; 42 Am. Dec. 500; 33 Fed. 236; 1 N. McC. 338; 6 Rich. L. 310; 18 S.C. 184 ; Dudley 62. Evidence that similar stock sold for a certain amount shortly before the alleged conversion will justify a verdict fixing its value at such sum: 54 N.Y. Sup. Ct. 525. Plaintiff may recover the highest value up to the time of trial: 1 N. McC. 344; 72 S.C. 458 ; 89 S.C. 538; 91 S.C. 439 . Nothing occurring after the commencement of the action could be res adjudicata under the original complaint. The conversion of the stock occurred in 1912 when the mills were merged.

Dissenting Opinion

Mr. Justice Watts,

dissenting. Por the reasons stated in the Circuit decree, I think the exceptions should be overruled, and the judgment affirmed.

Mr. Justice Gage did not participate in the consideration of this appeal.

Opinion of the Court

The opinion of the Court was delivered by

Mr. Justice Fraser.

This is a second appeal. The first is to be found in 97 S. C. 178, 81 S. E. 424.

The respondent in his argument says;

“This was originally an action instituted by the plaintiff against the defendant: (1) For an accounting; (2) for an order enjoining the defendant from interfering with plaintiff’s possession of a certain house and lot; (3) for an order *177 requiring defendant, upon payment by plaintiff of the amount found due by him, to transfer to plaintiff the stock ■mentioned in the complaint (mill stock) which had been pledged to defendant by plaintiff to secure certain sums of money borrowed.”

In the first decree of the Circuit Court we find the following:

“If Hamer had sold the stock to pay the debt, that would have been an executed transaction. If Hamer had held the stock as security for the debt, that would have been his right. He did neither; he took the stock for himself; took it at his own price and allowed Haselden no surplus; in legal parlance he converted it.”

In the judgment of this Court on appeal we find in 97 S. C. 184, 81 S. E. 42:

“So that as a matter of law the stock belonged to Haselden.”

In 97 S. C. 185, 81 S. E.426:

“Mr. Haselden is the equitable owner of the stock, and entitled to all credits from dividends arising thereon and otherwise, and the case will have to be remanded to the Court of Common Pleas for Dillon county for a restatement of the account on this basis. Mr. Hamer is entitled to his debt with interest.”

After that decision, instead of taking the account on that basis, the plaintiff moved for, and was allowed, to file a supplemental complaint and charge that Hamer had converted the stock to his own use. A trial was had on the supplemental complaint, and, without any material change in the testimony, the Court of Common Pleas again found that Mr. Hamer had converted the stock to his own use. From the order allowing the supplemental complaint and the decree based thereon, the defendant, has again appealed.

There are 17 exceptions, but the respondent in his argument has said:

*178 “The question as to whether this matter is res ad judicata and if the supplemental complaint was proper both hang on the same proposition of law; for, if the plaintiff was obliged to sue for the conversion when he wanted the actual stock which was his and unlawfully detained by defendant, then to have filed a supplemental complaint was error for the reason that such matters as were alleged in said supplemental complaint had been adjudicated by this Court.”

There is, indeed, but one question in this case. Is the matter of “conversion” res adjudicata? It is res adjudicate.

In the first Circuit decree it was held that the stock that had been Haselden’s had become the stock of Hamer. That change of ownership was called “conversion.” When this Court held as a matter of law that there had been no change of ownership, it followed inevitably that there had been no conversion. When this Cort said, “even if there was a conversion,” the parenthetical clause “but there was not” was clearly to be understood. The facts found were wholly inconsistent with a conversion, as set forth in the first Circuit decree. The status was finally determined in the first appeal, and the case remanded for the purpose of a restatement of the accounts.

The order allowing the supplemental complaint and the Circuit decree based thereon are both reversed.

Mr. Hamer offers the new stock in the consolidated mills for his old stock. With this exception (the choice of stock), the case is remanded to the Court of Common Pleas to carry out the former order of this Court.

Mr. Chief Justice Gary and Mr. Justice Hydrick concur in the opinion of the Court.

Footnote. — Decision of appellate Court upon sufficiency of evidence to prove fact in controversy as res judicata on second appeal, see note in 6 A. & E. Ann. Cas. 791.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.