Cannon v. Atlantic Coast Line R. Co.

• Decision Date: 24 August 1915
• Docket Number: 9167.
• Citation: 86 S.E. 4,101 S.C. 502
• Parties: CANNON v. ATLANTIC COAST LINE R. CO.
• Court: South Carolina Supreme Court

86 S.E. 4

101 S.C. 502

CANNON v. ATLANTIC COAST LINE R. CO.

No. 9167.

Supreme Court of South Carolina

August 24, 1915

Appeal from Common Pleas Circuit Court of Charleston County; T. S Sease, Judge.

Action by F. S. Cannon against the Atlantic Coast Line Railroad Company. From an order denying defendant's motion to suspend proceedings until costs and disbursements of a former action were paid by plaintiff, defendant appeals. Order affirmed.

W Huger Fitz Simons, of Charleston, for appellant.

W. A Holman, of Charleston, for respondent.

FRASER J.

Appellant states his cause as follows:

"This action was commenced January 13, 1913. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The circuit judge, Judge Bowman, sustained the demurrer and dismissed the complaint. The case was appealed from Judge Bowman's order, and is reported in 97 S.C 233, 81 S.E. 476. The Supreme Court affirmed the judgment of Judge Bowman, 'with leave, however, to the plaintiff to apply for permission to amend his complaint.' On the 24th day of July, 1914, plaintiff served an amended complaint, and defendant accepted service thereof and served its answer thereto. This amended complaint is set out in the record. On the 19th day of March, 1915, defendant served plaintiff with notice of taxation of costs and disbursements, amounting to $96.30, and the plaintiff's counsel indorsed upon said statement his written consent that the taxation was correct, and the clerk of court for Charleston county on the 25th of March, 1915, taxed the costs in accordance therewith at the said sum of $96.30. On March 25, 1915, defendant served plaintiff with the notice (set out in the record) of motion that upon the record and proceedings herein, and upon the taxation of costs and disbursements of the former action for the same cause, the complaint in which was dismissed upon demurrer for failure to state a cause of action, it would move for an order suspending all proceedings in this action until such costs and disbursements have been paid. This motion was heard and refused by Judge Sease April 8, 1915. It is from Judge Sease's order refusing this motion that this appeal is taken."

The complaint was not dismissed, but the plaintiff was allowed to amend. There are several exceptions, but they raise but one question, to wit: Is this a new action, or a continuance of the...