10 S.C. 464 | S.C. | 1879
The opinion of the Court was delivered by
There appears to have been some misapprehension in the case as to whether the plaintiff has a right to appeal. Such question, however, was waived, and the case was heard upon the following ground of appeal: That the Circuit Judge erred in refusing to instruct the jury that they could not find a verdict in favor of the defendants for any part of the counter claim set up in the answer, for the reason that the action was against more than one defendant on a joint and several obligation, while the counter claim was a cause of action against the plaintiff in .favor of only one of the defendants. The Code of Procedure (§ 173, Rev. Stat., 606,) directs that “the counter claim” * * * must be one existing “in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action.” It is not disputed that the claim set up in the answer is within the statutory definition of a counter claim, and it is “in favor of a defendant and against a plaintiff;” but the question is whether between them, the said single defendant and the plaintiff, “a several judgment might be had in the action.” Section 298 of the Code, Revised Statutes, page 639, that “judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants,” is very comprehensive and permits a judgment severally to be given between any two or more parties in a suit whenever a distinct, sepa
In the case of Byrd vs. Charles, (3 S. C., 352,) relied on by the appellant, the circumstances were entirely different. The counter claim was a cause of action held by the defendant against a late partnership concern of which the plaintiff had been a member, but neither the partnership nor its members were parties in the action. The defendant thus undertook to bring an action without there being proper parties, and, therefore, the counter claim was properly rejected. “ Nothing can be more firmly settled than the general rule that, in the absence of a statutory provision to the contrary, where an action is brought by a partnership on a claim due the firm, no demand in favor of the defendant against one or more of its members can be used as a counter claim.” — Pomeroy on Rem., 756. The same rule, for the same reason, applies when a member
The judgment of the Circuit Court is affirmed.
Motion refused.