Inman v. Hodges

• Decision Date: 07 July 1908
• Citation: 61 S.E. 958,80 S.C. 455
• Parties: INMAN et al. v. HODGES.
• Court: South Carolina Supreme Court

61 S.E. 958

80 S.C. 455

INMAN et al. v. HODGES.

Supreme Court of South Carolina

July 7, 1908

Appeal from Common Pleas Circuit Court of Marlboro County; Chas. G Dantzler, Judge.

Action by J. Walter Inman and others against P. A. Hodges. From an order refusing to allow plaintiffs to discontinue their action, they appeal. Affirmed.

Rogers & LeGrande and Burke, Rivers & Erckman, for appellants.

Townsend & Warner, for respondent.

GARY A. J.

The question involved in this appeal is whether his honor the circuit judge erred in refusing the plaintiffs' motion for an order allowing them to discontinue their action.

The plaintiffs, J. Walter Inman and James F. McGowan, are partners in trade, with their principal place of business in Augusta, Ga., and a branch office in Charleston, S. C., under the management of their agent, John F. Maybank, who entered into an agreement with the defendant to buy cotton for them during the year 1902. The plaintiffs commenced this action in November, 1903, in the court of common pleas for Marlboro county, to recover the sum of $372.76, alleged to be due them by reason of an overdraft on the part of the defendant. The defendant set up a counterclaim in the sum of $1,166.93.

The following statement appears in the record: "The plaintiffs regularly served on attorneys for defendant notice of taking testimony de bene esse in the city of Charleston on the _____ day of October, 1907, before F. K. Myers, notary public; that at the time and place mentioned Newton and Owens, of Bennettsville, S. C., appeared for defendant. Messrs. Burke, Rivers & Erckman were present representing the plaintiffs. The testimony of John F. Maybank and James L Ferguson was taken, and duly and regularly forwarded to the clerk of the court of Marlboro county, the said testimony being made up of questions and answers and of written evidence introduced and made a part of the testimony."

The plaintiffs gave notice that they would make a motion on the 25th of November, 1907, for an order discontinuing their action.

The record contains this statement: "The cause was argued before Judge Dantzler on November 25, 1907, who stated to attorneys for plaintiffs that he was disposed to grant the discontinuance, unless the discontinuance would work injury to the defendant, and that before granting an order in the case he wished to know if the plaintiff would accept service upon summons and complaint in a new action, if defendant desired to bring an action on the cause of action set up in the counterclaim; that the attorneys for the plaintiff took the proposition under consideration, and later informed the court, that they would not agree to the acceptance of such service."

His honor the circuit judge then granted an order refusing the motion, on the ground that it would be prejudicial to the rights of the defendant. The exceptions are as follows: (1) "Because his honor the presiding judge erred in holding that the plaintiffs could not discontinue their action as a matter of right. (2) Because his honor erred in holding that it was in the discretion of the court to refuse the motion to discontinue, when it was clearly made to appear to the court that notice of such motion was given to attorneys for defendant before case was called for trial."

In the case of Bank v. Rose, 1 Rich. Eq. 292, Chancellor Harper, who delivered the opinion of the court, used this language: "The general rule is, as contended for, that the plaintiff, at any time before the decree, perhaps before the hearing, may dismiss his bill, as of course, upon payment of costs; but certainly it cannot be said that the rule is without exception. The exception, stated in the general rule is that it is within the discretion of the court to refuse him permission to do so if the dismissal would work a prejudice to the other parties; and I gather from the cases compared with each other that it is not regarded as such prejudice to a defendant that the complainant, dismissing his own bill, may at his pleasure harass him by filing another bill for the same matter. But whenever, in the progress of a cause, a defendant entitles himself to a decree, either against the complainant or against the codefendant, and the dismissal...