200 S.E. 358 | S.C. | 1938
December 15, 1938. *67 In his order allowing the plaintiff to amend his complaint, the Circuit Judge sufficiently states the nature of the controversy and the issues involved. The defendant contends (1) that the complaint, as amended, states a new cause of action, and (2) that such cause of action is barred by the statute of limitations.
Under the facts shown, if appellant's first contention is right, then his second must be sustained. As stated in Coral Gables v. Palmetto Brick Co.,
The respondent argues, however, that "the amended complaint does not set up a new cause of action, but seeks only a different remedy on the original cause of action," which the Circuit Judge could properly allow by amendment. In Heller, Hirsh Co. v. Phosphate Co.,
We think the above cited decision supports plaintiff's contention, namely, that the amendment allowed did no more than substitute a new and different remedy from that which was relied upon in the original complaint. This appearing to be true, it is clear *68
that such amendment does not set up a new cause of action, for the reason that a cause of action and the remedy sought are entirely different matters. See Emory v. HazardPowder Co.,
Finding no abuse of discretion on the part of the Circuit Judge in allowing the amendment, we approve, for the reasons above stated, the order issued by him. SeeEbner v. Haverty Furniture Co.,
We find that the respondent admits in the agreed statement of fact that the order allowed the plaintiff to amend his complaint "so as to change his cause of action." Generally, a statement of this kind would be binding upon the party agreeing to it. However, an examination of the Court's order discloses that the Circuit Judge held to the contrary, to wit, that "the proposed amendment did not set up a new cause of action." We conclude, therefore, that this statement was inadvertently made and agreed to by counsel.
The circuit decree, which will be reported, is affirmed.
MR. JUSTICE CARTER did not participate on account of illness. *69