Opinion
10278
August 26, 1919.
Before WILSON, J., Florence, Fall term, 1917. Affirmed.
Action by Winslow Wright Co., a partnership, against Thos. Edward McKnight. From an order overruling a motion to dismiss, defendant appeals.
Messrs. Arrowsmith, Muldrow, Bridges Hicks, for appellants (no citations).
Messrs. Willcox Willcox, and McNeill Oliver, for respondents, cite: As to whether or not, having withdrawn his prior action, the appellant was still able to raise the plea of another action pending: 1 R.C.L., p. 11; 80 S.C. 64. As to whether or not the plaintiff-respondent should have set up his debt and demand for possession of property as a counterclaim in the prior action brought against him by defendant-appellant: Code of Procedure, sec. 257.
August 26, 1919. The opinion of the Court was delivered by
In February, 1913, plaintiff sold defendant some fertilizer and took his note for the price thereof, due October 15, 1913, and secured by mortgage of defendant's crops and some chattels. In October, 1913, defendant brought an action against plaintiffs for damages for breach of warranty of the fertilizer, and for cancellation of his note and mortgage. Plaintiffs answered, denying the warranty and the allegations upon which cancellation was sought. Thereafter plaintiffs brought this action in claim and delivery to recover possession of the mortgaged property, or the value thereof. Defendant answered, pleading, inter alia, another action pending, to wit, that which he had brought against plaintiffs.
Both cases were referred to a referee, and when they were called for trial before the referee a contention arose as to which case should be first tried. The referee ruled that the action first brought — that of the defendant herein against the plaintiffs herein — should be first tried; but, on the insistence of defendant herein that his plea in abatement should be first decided, the referee considered and overruled it. Defendant then moved for a continuance of the cases, until the Court should decide upon the validity of his plea, and that motion was overruled. A motion for continuance on the ground of surprise was then made and overruled. Thereupon, on motion of defendant, and by consent of plaintiffs, an order was taken discontinuing defendant's case against plaintiffs.
Thereafter this case came on to be heard on the report of the referee, whereupon defendant renewed his motion to dismiss it, on the ground of another action pending at the time it was commenced. The motion was properly overruled, as clearly appears from the authorities cited by respondent.
Appeal dismissed.