Shelton v. Southern Ry., Carolina Div.

• Decision Date: 16 April 1908
• Citation: 61 S.E. 220,80 S.C. 74
• Parties: SHELTON v. SOUTHERN RY., CAROLINA DIVISION, et al.
• Court: South Carolina Supreme Court

61 S.E. 220

80 S.C. 74

SHELTON v. SOUTHERN RY., CAROLINA DIVISION, et al.

Supreme Court of South Carolina

April 16, 1908

Woods J., dissenting.

Appeal from Common Pleas Circuit Court of Kershaw County; Ernest Gary, Judge.

Action by William J. Shelton against the Southern Railway, Carolina Division, and another. From an order of the circuit judge at chambers granting plaintiff's motion to discontinue defendants appeal. Affirmed.

B. L Abney and E. M. Thomson, for appellants.

Legare Holman & Baker, for respondent.

JONES J.

This is an appeal from an order of Judge Ernest Gary made at his chambers at Columbia, S. C., March 23, 1907, granting plaintiff's motion to discontinue the above cause upon the payment of the costs to be taxed by the clerk. On the call of the case in this court, respondent, upon notice, made a motion to dismiss the appeal on the ground that such order is not appealable. The appealability of the order depends upon whether the order is a mere order of discontinuance not affecting any substantial right of appellant, or whether such order deprives appellant of some substantial right. As the determination of this question is involved in the consideration of the appellants' grounds of appeal, we proceed to consider the exceptions.

The general principle of law applicable to discontinuances is thus stated in Forrest v. City Council of Charleston, 65 S.C. 501, 43 S.E. 952: "The rule is well settled that plaintiff may be granted leave upon payment of costs to discontinue his suit before verdict in an action at law, and before decree in a suit in equity, where the cause has not so far progressed as to entitle defendant to a decree against plaintiff or a codefendant, and where no intervening party has acquired a right to a retention of the cause. Branham v. Brown, 1 Bailey, 262; Johnson v. Basguere, 1 Speer, 307; Bossard v. Lester, 2 McCord, Eq. 419; Bank v. Rose, 1 Rich. Eq. 294; Latimer v. Sullivan, 37 S.C. 120, 15 S.E. 798; 6 Ency. Pl. & Pr. 833, 834." The appellants, recognizing this rule, contend that the cause had so far progressed that it would deprive them of a substantial right to allow a discontinuance. A brief statement of the status at the time of the discontinuance will be necessary. Plaintiff commenced the action August 7, 1905, to recover damages for personal injuries alleged to have been sustained by him February 24, 1905, while a passenger on defendant's train by the derailment thereof as the result of defendant's alleged negligent and willful conduct. The case was transferred to the United States court, and thereafter remanded to the court of common pleas for Kershaw county. On September 7, 1906, defendant applied to Judge R. W. Memminger, presiding at that time in the Fifth circuit, for an order requiring plaintiff to attend before him at his chambers in the city of Columbia, Richland county, at a time to be named by his honor, for the purpose of being examined as a witness in said cause. The order was granted, requiring plaintiff to so attend on September 14, 1906. The application was made and the order granted under sections 391-395 of the Code of Civil Procedure of 1902. On September 15, 1906, Judge Memminger referred the matter of taking the testimony and examination of said witness to R. W. Shand, Esq., with the same power and authority as if the examination were had before his honor, and directed that the examination be commenced on September 19th or 20th, and continued from day to day until completed. Acting under said order, R. W. Shand, referee, appointed several times for the taking of said examination, notice of which was served on the plaintiff, W. J. Shelton, and the plaintiff was subpoenaed as a witness to appear. His fees as such witness were tendered him. He was given opportunity to excuse default, but failed to appear for the purpose of the examination under circumstances which satisfied the said R. W. Shand that the witness was trying to evade all process, rules, or notice. The trial having been fixed for October 1, 1906, in the court of common pleas for Kershaw county, Referee Shand filed his report on September 29th, together with the original order of the court and the minutes of the proceedings, including all the notices, affidavits, and rules to show cause. By consent the case was continued until the next term of Court. In the meantime plaintiff applied to Judge Ernest Gary at chambers for the order of discontinuance now appealed from.

The appellants contend that the granting of the discontinuance operated to deprive them of applying to the court under section 395 of the Code of Procedure for an order striking out the complaint as a punishment for the plaintiff's contempt in refusing to testify before R. W. Shand under the order of the court, which was a substantial right that had accrued to defendants under section 395, Code Civ. Proc. 1902. That section provides that, when a party refuses to testify in the manner prescribed in the four preceding sections, "he may be punished as for a contempt, and his complaint, answer, or reply may be stricken out." We do not think that this situation brings the case within the limitations of the general rule as stated above in the case of Forrest v. City Council of Charleston, 65 S.C. 501, 43 S.E. 952. It does not conclusively appear upon the record that the plaintiff had been guilty of any contempt of court, because he had not been served with the rule to show cause why he should not be attached for contempt, and no judgment in contempt had been rendered against him. It not appearing that the cause had so far progressed as to entitle defendant to a judgment against plaintiff, appellants' contention cannot be sustained under the rule stated in the Forrest Case.

Ap...