42 S.C. 488 | S.C. | 1894
The opinion of the court was delivered by
This is an action brought by the plaintiff to recover possession of two parcels of land, one on the east and the other on the west side of the Columbia Canal, now in the possession of the defendant company. The plaintiff alleges in the complaint that its title is derived from one B. F. Taylor, who, while seized and possessed of the land
The defendant answered, denying plaintiff’s title, and while admitting that said B. F. Taylor is one source of its title, denies that such is its only source of title; and denies that the said Taylor, or the executors of his will, or Glaze, or the Greens, or either of them, at any time ever entered into possession of the land in dispute under the authority or permission alleged to be contained in the aforesaid act of the General Assembly, or that they ever, in any way, recognized any title in the said State to the premises in dispute, or any person or body corporate whatever, and denies that the several conveyances mentioned in the complaint were in the form alleged. For a second
At the close of plaintiff’s testimony, set out in the “Case,” defendant moved for a nonsuit, apparently upon the ground that it appears from certain public acts, of which the court is bound to take judicial cognizance, that the State had parted with its title to the land in dispute by its conveyance to Samuel A. Pearce, trustee of Wm. Sprague, before the plaintiff acquired
At this stage of the proceedings one of the counsel for plaintiff stated that they stood ready to pay the costs of the former action when properly taxed; to which counsel for defendant replied that the costs should have been paid before the commencement of the present action, which the “Case” shows was commenced on the 15th of August, 1893, and the trial came on at October Term, 1893. “It was made to appear to the court that the defendant, without notice to plaintiff, carried a copy of the summons and complaint into the clerk’s office, seven days before the convening of the court, and filed the same and endorsed the following: ‘Issue of fact to be tried by the jury. Please docket on Cal. 1. Lyles & Muller, defendant’s attorneys, Abney & Thomas, plaintiff’s attorneys. Sept. 29th, 1893.’ And the same was marked by the clerk as follows: ‘Cal. 1, Case 88, filed 29th Sept., 1893,’ which said paper was exhibited to the court (and upon which as the record the verdict was written subsequently). It was furthermore made to appear that when the members of the bar met for the purpose of making a roster of cases for trial, Mr. Lyles, attorney for defendant, with
At this stage the court made the following inquiry: “Was judgment upon the order of dismissal regularly entered up and judgment roll formed, anda claim by defendants for costs'?” To which counsel for defendant responded as follows: “No, because the statutes do not say anything of the kind.” The court then ruled that the case must go on, but the plaintiff must pay the costs. To this counsel for defence said: “We submit it is too late to pay it. The plaintiff has no right now to pay the costs of the former case.” To which the court responded as follows: “You should not have suffered the trial to. commence.” We also find the following statement in the “Case:” “After the court had determined that the case should proceed, and it had been ordered on, and had been proceeded with, then late at night Judge Hudson said to Mr. Abney, plaintiff’s attorney, that the costs should be paid, and inquired what was the amount. Whereupon Mr. Abney stated that he could not tell what the amount was; there was no taxation of costs, and what the clerk had added up was $14.70. Thereupon the clerk, standing within his railing, stated that there were costs for the surveyors; whereupon Mr. Abney stated that they had been paid — some $90 — and that the other would have been paid if presented or taxed, or any suggestion had been made about it; that he did not know what the costs were, and could not tell until taxed, or until a demand for them in some way was made; but that he was ready at any time, and had always been, to pay the same. Thereupon the court said that plain
At the conclusion of the testimony, both parties submitted sundry requests to charge, which are set out in the “Case,” and the Circuit Judge proceeded to charge the jury as is set forth in the “Case.” The jury having rendered a verdict in favor of the plaiutiff for the land in dispute, and judgment having been entered thereon, defendant appeals upon numerus grounds set out in the record.
Thus the law stood until the act of 1744 was repealed by the Revised Statutes of 1872, and the Code, as originally adopted in 1870, made no provision whereby a plaintiff who had failed in his first action for the recovery of real property, which had been substituted for the old action of trespass to try titles, which had been made the substitute of the action of ejectment by the act of 1791 (Geiger v. Kaigler, 15 S. C., 262), could bring a second action for the recovery of the same land; though we see no reason why, in the interval between the repeal of the act of 1744 and the passage of the act of 1879, a plaintiff who had been nonsuited in an action of trespass to try titles, or for the recovery of real property, or had voluntarily discontinued such action, might not have brought another action, just as he could do if he were nonsuited in an action to recover an ordinary money demand, or had discontinued such action. But, in 1879, the legislature saw fit to pass an act not only limiting the plaintiff to two actions, but also expressly prescribing the conditions upon which alone the second action could be brought. It will thus be seen that, while under the previous law the requirement of the payment of the costs before the second action could be proceeded with, was a matter resting in the discretion of the court, it is now made, by statute, a condition precedent to the right to bring the second action, and the court has no right to dispense with or modify such statutory requirement. It is very obvious, therefore, that a motion to stay proceedings in this action until the costs of the former action were paid, was not only entirely unnecessary, but would have been wholly out of place. Rule 60 of the Circuit Court, which
In the first place, we do not see by what authority it can properly be said that the provision in the act of 1879, requiring the prepayment of the costs of the former action, was intended only for the benefit of the defendant. We find this provision in the act as one of the conditions upon which the plaintiff may enjoy a privilege there accorded to him, and it certainly was not to the interest of the defendant to remove one of the obstacles in the way of having another action brought against it, either by waiver or otherwise. But, in the second place, we do not think that there was anything in the conduct of the defendant which amounted to a waiver of its right to insist upon the plaintiff complying with both of the statutory requirements. It was not the duty of the defendant, nor was it to its interest, to have the cost of the former action regularly taxed, or to make any claim or demand for the payment of the same, and thus facilitate and suggest plaintiff’s compliance with a condition precedent to its right to bring the present action. On the contrary, it was the duty of the plaintiff, as well as to its interest, to ascertain and pay these costs which it had unnecessarily incurred, as shown by its voluntary discontinuance of the former action. When the defendant by its answer for
7 Inasmuch as the views which we have presented are conclusive, not only of this appeal but also of the case, the other questions presented need not be considered. While it may seem somewhat harsh to enforce this stringent statutory requirement, we are the less reluctant to do so in this case, where the object of the action is to recover the possession of lands which have been in the continuous, undisputed, and unchallenged possession of the defendant, and those under whom it claims, ever since the 8th of April, 1853, a period of more than forty years before the commencement of this action; especially when we see that the Circuit Judge took from the jury the question of fact as to the character of such possession.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and that the complaint be dismissed.
After a careful consideration of this petition, the court is unable to discover that any material fact or principle of law has either been overlooked or disregarded, and there is, therefore, no ground for a rehearing. It is, therefore, ordered, that this petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.