43 S.C. 381 | S.C. | 1895
Lead Opinion
The opinion of the court was delivered by
This action was commenced on the 11th day .of November, 1893, by summons and complaint personally served on the defendant, in Yorkville, S. G. The action was upon a demand for $250, alleged to have been loaned to
Prior to the commencement of this action, to wit: on the day of July, 1893, an action was commenced by the plaintiff against the defendant for the same cause of action as is herein mentioned. It seems that when the first action came on for trial before his honor, Judge Ernest Gary, and a jury, on the 11th day of November, 1893, the defendant interposed an oral demurrer to the jurisdiction of the court, and that the presiding judge orally sustained the demurrer, and discharged the jury that had been empanelled to try the action. The formal order sustaining the demurrer, however, was not signed by his honor, Judge Gary, until the 14th day of November, 1893. The present action was commenced on the 11th day of November, after the jury had been discharged as aforesaid. The plaintiff gave notice of appeal from the order of Judge Gary, but failed to perfect the same.
The jury rendered a verdict for the plaintiff for two hundred and fifty dollars, and judgment was entered thereon. The defendant appealed, on exceptions which will be set out in the report of the case.
It is the judgment of this court, that the judgment of the Circuit Court be affirmed.
Gave notice of withdrawal of his appeal. — RepORTER.
Concurrence Opinion
I concur. I may add, however, that it does not appear from the “Case” as prepared for argument here that any motion was made to dismiss the complaint upon the ground that there was another action pending, nor does it appear that Judge Watts was either requested to charge or did charge the jury upon that point, and hence that question is not properly before us.