6 S.C. 201 | S.C. | 1875
The opinion of the Court was delivered by
The present appeal is from an order refusing to dismiss the complaint, it appearing that the plaintiff’s demand had been satisfied by the defendant, Tolbert, and that he consented to such dismissal. Hickson and others, joined as defendants to the original complaint as having claims against the defendant, Tolbert, similar to those set up by the plaintiff, resisted the motion to dismiss the complaint, claiming that under the decision of this Court on the former hearing in this case, reported in 3 S. C., 531,
The Circuit Court arrived at a correct conclusion in deciding to retain the cause for a decree in favor of such of the other defendants as, according to the decision of this Court, were entitled to decrees.
The judgment originally brought into this Court, and which was set aside, as reported in 3 S. C., was a judgment dismissing the complaint upon grounds equally applicable to the plaintiff and certain of the defendants joined with Tolbert. That judgment was set aside on the appeal of the plaintiff, and, as a consequence, the action was before the Circuit Court for a proper judgment. No other judgment could, under the circumstances, have been rendered by this Court. It was impossible, from the nature of the judgment appealed from, to merely modify it or to set it aside only as affecting the interests of the plaintiff, leaving it of force as against the defendants who had not appealed. The complaint having been dismissed, it was for this Court to do one of two things — either to affirm the judgment of dismissal or to set it wholly aside. The last named was the judgment of this Court.
The effect of this judgment was to return the case to the Circuit Court wholly unadjudicated, except so far as the principles of a decree were embodied in the judgment of this Court. Under such circumstances, there was nothing to prevent Hickson and the other defendants having rights the same as his from demanding decrees for such amounts as might be found due to them.
The judgment of the Circuit Court dismissing the complaint was wholly gone, and no interlocutory judgment or order stood in their way so as to bar their demand. Finding this case thrown open upon the plaintiff’s appeal, there was nothing in their way to prevent them from asking such a decree as should result from the principles settled by this Court.
The appeal should be dismissed.
