Hambright v. Southern Railway

Supreme Court of South Carolina July 17, 1914

Hambright v. Southern Railway, 82 S.E. 416 (S.C. 1914)

98 S.C. 219; 1914 S.C. LEXIS 34

Gary

Opinion of the Court

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an appeal from an order allowing the plaintiff to amend the summons and complaint, by substituting' the name of “Atlanta and Charlotte Air Line Railway Company,” instead of the defendant, “Southern Railway—Carolina Division;” also from an order refusing- the motion, to allow the defendant h> tax costs against the plaintiff.

The order allowing- the amendment was, in effect, a dismissal of the complaint against the defendant, Southern Railway—Carolina Division, and was not prejudicial to its rights. Therefore the exception assigning error in this respect is overruled. But, as the order was, practically, a dismissal of the complaint, the defendant was entitled to its costs, and there was error in refusing to allow the defendant to tax them against the plaintiff.

Modified.

Reference

Full Case Name: Hambright v. Southern Railway &8212 Carolina Div.
Status: Published
Syllabus: Pleadings. Amendment. Costs. Appeal and Eiaton. 1. An order permitting an amendment to substitute a third party as defendant instead of the original defendant, is in effect a dismissal of the action against the original defendant, and not prejudicial to its rights, and an appeal by the original defendant will not lie from such order,-except as to costs. 2. Upon the dismissal of action against original defendant, and the substitution of another in his stead, the original defendant should be allowed to tax costs against the plaintiff.