This appeal is from an Order granting plaintiff’s motion for a nonsuit without prejudice before trial and presents the question of whether or not the trial Judge thereby abused his discretion.
Action was instituted in the Court of Common Pleas for Darlington County by plaintiff, who seeks damages for injuries allegedly sustained as a result of an automobile-truck collision on July 21, 1960, near Athens, Georgia. The defendant Young, a resident of Anderson County, South Cаrolina, was the driver of the truck owned by the defendant Bowman Transportation, Inс., (hereinafter referred to as Bowman), a foreign Corporation organizеd and existing under the laws of the State of Alabama and licensed to do business in the State of South Carolina.
Summons and complaint were served on defendants on December 24, 1960; subsequently motion of defendant Young for change of venue on the grоunds of lack of jurisdiction of the person was denied by Order of the Honorable J. Wоodrow Lewis, dated March 1, 1961.
On May 17, 1961, defendant Bowman served notice of motion tо dismiss the summons and complaint on the grounds of lack of jurisdiction of the subject mattеr and defendant Young served notice of motion to change the venue to Andеrson County in the event defendant Bowman’s motion was granted. Defendant Young also served his answer, dated May 17, 1961, to the complaint.
Defendant Bowman’s motion was heard by the Honorable James A. Spruill, Jr., on November 17, 1961, at which time various affidavits, certificates and other evidence were presented tending to show that the plaintiff was at the time of *290 the auto-truck collision in July,' 1960, and at the time of the commencement of the action in December, 1960, a resident of the State of California. The plaintiff presented various affidavits, certificates and other evidence tending to show that he was a resident of the State of South Carolina at the time of the collision and at the time of the commencement of suit. After hearing, Judge Spruill took the matter tinder advisement.
On November 18, 1961, plaintiff prepared notiсe of motion that he would move before Judge Spruill on November 25, 1961, for a voluntаry nonsuit without prejudice, which notice was served upon defendant’s counsel оn November 20, 1961. At the hearing before Judge Spruill on the above motion plaintiff cоntended that he was entitled to the voluntary nonsuit as a matter of right. Defendants contended that the plaintiff was not so entitled as the granting of such nonsuit would constitute lеgal prejudice to or the loss of some legal right to the defendant Bowman. By Order of January 10, 1962, Judge Spruill granted plaintiff’s motion for a voluntary nonsuit and defendant’s aрpeal followed.
The granting of a voluntary nonsuit without prejudice not only terminates the case as a procedural matter, but leaves the situation as though no suit had ever been brought unless defendant has interposed claim for affirmativе relief.
Allen v. Atlanta & Charlotte Air Line Ry. Co.,
216 S. C. 188,
Material or legal prejudice may not be deduced from the faсt that the granting of the motion for nonsuit would impose upon the defendant the necessity of defending another suit.
State v. Southern Railway Co.,
82 S. C. 12,
Defendant Bowman contends that it is entitled to an Order dismissing the complaint as to it on the ground that under Section 10-214 of the Code of Laws of South Carolina, 1962, the court has no jurisdiction of the subject matter. (See
Gibbs v. Young et al.,
S. C.,
The rule in this Stаte is that a plaintiff is entitled to a voluntary nonsuit without prejudice as a matter of right unless there is a showing of legal prejudice to the defendants. The trial Judge has nо discretion with respect to the granting of such a motion unless and until legal prejudiсe is shown. In that event, the matter becomes one of discretion for the trial Judgе.
Fairey v. Gardner,
233 S. C. 297,
Appellant Bowman has made no showing that legal prejudice will result from the grаnting of plaintiff’s motion for a voluntary nonsuit and we are of opinion that the Order appealed from should be affirmed, and it is so ordered.
Affirmed.