Latimer v. Sullivan

• Citation: 15 S.E. 798,37 S.C. 120
• Parties: Latimer et al. v. Sullivan.
• Decision Date: 18 September 1892
• Court: United States State Supreme Court of South Carolina

15 S.E. 798

37 S.C. 120

Latimer et al.

v.Sullivan.

Supreme Court of South Carolina.

Sept. 18, 1892.

Practice — Withdrawal of One Cause op Action—Costs—Notice—Review on Appeal.

1. An order permitting plaintiff to withdraw one of the items constituting the cause of action, being more in the nature of an order to amend than an order to discontinue, may be granted without costs to plaintiff, and without notice of motion to defendant.

2. In the absence of any objection by defendant in the court below to such order for want of notice, no such objection can be raised on appeal.

Appeal from common pleas circuit court of Greenville county; William H. Wallace, Judge.

Action by J. P. and J. H. Latimer, as executors, etc., against John D. Sullivan. Judgment for plaintiffs. Defendant appeals. Affirmed.

Perry & Hey ward and Westmoreland & Haynsworth, for appellant.

Irvine & Mooney, for respondents.

McIver, C. J. This being the second appeal in this case, reference should be hadto the case as reported in 30 S. C.111, 8 S. E. Rep. 639, for the purpose of ascertaining the nature of the case, and the points determined by the former appeal. When the case was remitted to the circuit court, plaintiffs, at March term, 1891, " without notice, moved to withdraw the cause of action set out in the first paragraph of the complaint. To this defendant's counsel objected, on the grounds that plaintiffs could not discontinue without payment of costs, and that the action, as brought, being, under the ruling of the court, but one action, could not be divided, as proposed." Thpse objections were overruled by his honor, Judge Wallace, who granted the following order: "That plaintiffs have leave to withdraw the item, or cause of action, set out in paragraph 1 of the complaint, to wit, the $520 note, without prejudice, "—from which order defendant appeals, upon the following grounds: " (1) That his honor * * *erred in holding that the plaintiffs had a legal right to discontinue part of the cause of action contained in the complaint, and retain the remainder; (2) that his honor erred in holding that the plaintiffs had a right to discontinue without payment of costs; (3) that his honor erred in granting the motion of the plaintiffs without previous notice to the defendant."

This case has been argued here as if the question were as to the plaintiffs' right to discontinue their action, and it was contended, upon the authority of the cases of Bossard v. Lester, 2 McCord, Eq. 419, (which, however, has been overruled by the case of Bethia v. McKay, Cheves, Eq. 93;) Muldrow v. Du Bose, 2 Hill, Eq.37o; Bank v. Rose, 1 Rich, Eq. 292; Ancker v. Levy, 3 Strob. Eq. 210; and Adger v. Pringle, 11 S. C. 547; besides other authorities elsewhere, —that plain tiffs cannot discontinue, after answer, without payment of costs; nor at all where the rights of other parties might, be prejudiced, which it is claimed would be the effect of the order appealed from upon the rights of appellant, it will be observed that all of the cases mentioned are cases in chancery, in which the rule, as laid down by Harper, Ch.. in Bank v. Rose, supra, is as follows: "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 the payment of costs; but certainly it cannot be said that the rule is without exception. The exception, stated in the general terms, is that it is...