Manning v. City of Columbia
Manning v. City of Columbia
Opinion of the Court
Appellant (Defendant below) appeals from an order granting Respondents’ motion to amend a summons. We affirm.
Because we agree with the holding of the trial judge, we adopt his order as the directive of this court. It is as follows:
ORDER
This áction was commenced by summons and verified complaint dated October 6,1982. A notice of special appearance was made by the Defendant on October 18, 1982, for the purpose of contesting the jurisdiction of the court, on the ground that the summons attached to the complaint was defective. The summons provided that the Defendant was required to answer the complaint within twenty (20) days after service, exclusive of the date of service. Rule 102 of the Circuit Court Rules of Practice affords thirty (30) days in which to answer. On October 21, 1983, Plaintiffs made a motion for leave to file an amended summons on the basis that the time for response listed in the original summons was listed improperly through clerical error, inadvertence and/or excusable neglect. The issue presently before the court is whether Plaintiffs will be permitted to amend their summons, thereby invoking this court’s jurisdiction.
South Carolina Code Annotated § 15-9-100 (1976) states:
At any time in its discretion and upon such terms as it deems just the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Based upon this grant of discretion, and principles of equity, I hereby grant Plaintiffs’ permission to amend the summons in this action.
South Carolina Code Annotated § 15-3-310 (1976) provides that a Defendant’s responsive pleading must be served within twenty (20) days after service of the complaint. This Code provision was recently abrogated by Circuit Court Rule 102 which affords the Defendant thirty (30) days in which to respond after the service of the complaint. In Plaintiffs’ motion to amend the summons, Plaintiffs’ attorney declared that the mistake in the period, for
An amended summons relates back to the commencement of the action unless the amendment changes the cause of action or brings in new parties. Lee v. Hoff, 221 N. C. 233, 19 S. E. (2d) 858 (1942). Therefore, the amendments to the summons have the same effect as if they were included in the original summons. Calmes v. Lambert, 153
It is so ordered.
Affirmed.
Reference
- Full Case Name
- Burwell D. MANNING, Jr., Eastern Corn and Grain Company, Inc., Overlook, Inc. and Bluff Industrial Development Corporation v. The CITY OF COLUMBIA
- Status
- Published