91 S.E. 976 | S.C. | 1917
March 15, 1917. The opinion of the Court was delivered by Appeal from a formal order of the Circuit Court, whereby the plaintiff was allowed, with the defendant's consent, to discontinue the action. The suit is upon two notes made by the defendant to L.H. Southard, and by him assigned to the plaintiff, E.F. Southard. *510
There are two exceptions, which ought to be reported.
The first is unsound on its face; for it is common practice to discontinue a case when "the pleadings are made up and the cause is ready for trial." The exception is so indefinite that it signalizes no error.
The second exception is verbose and argumentative; but the kernel of it is that L.H. Southard, said to be an uncle of the plaintiff, had wronged the defendant in ways particularized in the complaint, and the wrongs are allied with the note sued on; that the Court had acquired a jurisdiction of L.H. Southard, and the defendant had a right to have these wrongs adjudged; that E.F. and L.H. Southard had conspired together to cheat and defraud the defendant, as was evidenced by their alleged acts. But L.H. Southard is not a party to the action; he is a nonresident; he has not been brought into the action; and one of the prayers for relief was that he might be brought in. His acts are irrelevant, so far as they affect him; for no judgment can be pronounced against him. Nor are the allegations of the answer sufficient to entangle the plaintiff with the alleged illegal conduct of L.H. Southard. The only allegations in the answer which refer to the plaintiff are that, if he purchased the notes, he got them after maturity; that they had no consideration. Then there is the allegation quoted below, the only one which suggests any connection betwixt the two Southards in the wrongs recited against L.H. Southard:
"And the defendant further alleges upon information and belief — that is, upon the acts and doings of L.H. Southard and E.F. Southard — that the plaintiff, E.F. Southard, and L.H. Southard have conspired and colluded to defraud and cheat the said company out of the said land, and also out of other large amounts of money."
The answer alleged no "acts and doings" of E.F. Southard, and alleged no facts or circumstances tending to show he had any part in the conduct charged against L.H. Southard. The only facts alleged which touch E.F. Southard are *511 his kinship to L.H. Southard and his ownership of the note. By no sort of reasonable conjecture do these two circumstances join him in the alleged conspiracy to defraud the defendant.
Had the Court retained the case, and tried it to the end, the outcome under the pleadings could not have affected the plaintiff, E.F. Southard, except perhaps to have defeated his recovery on the notes, and that event he may yet compass, if he be sued again. The Court had the clear right, if it exercised its discretion to do so, to permit the plaintiff to discontinue the cause. State v. Railroad,
We have not considered the circumstance that the defendant, acting through its alleged president, consented to the order of discontinuance.
The order below is affirmed.
