C. M. Davis Son & Co. v. Stukes

Supreme Court of South Carolina

C. M. Davis Son & Co. v. Stukes

115 S.E. 814, 122 S.C. 539, 1923 S.C. LEXIS 33

CourtSupreme Court of South Carolina

DecidedFebruary 8, 1923

Docket11134

StatusPublished

Cited by5 cases

This text of 115 S.E. 814 (C. M. Davis Son & Co. v. Stukes) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

C. M. Davis Son & Co. v. Stukes, 115 S.E. 814, 122 S.C. 539, 1923 S.C. LEXIS 33 (S.C. 1923).

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Opinion

The opinion of the Court was delivered by

Mr. Justice Coti-iran.

Action in Court of Magistrate for $100.00 damages on account of the alleged conversion of a bale of cotton covered by a crop mortgage given by one Hilton to the plaintiffs ; the cotton having been seized and sold by the defendants.

Prior to the institution of this action the plaintiffs had brought an action in claim and delivery against the defendants' for the identical bale of cotton involved in the present controversy. The result of that action was a judgment in favor of the defendants. Tile plaintiff attempted to appeal from that judgment to the Court of Common Pleas, but, the notice of appeal not having been served within the time required by law, the appeal was dismissed by his Honor, Judge Shipp. No appeal was taken from his order. Thereafter this action in damages for- conversion of the same bale of cotton was instituted. The Magistrate held that the judgment in the first action was res adjudicata of the matters involved in the second action and dismissed the acfion. Upon appeal to the Circuit Court his Honor, Judge Wilson, sustained the judgment of the Magistrate, and dismissed the appeal.

1,2 The present appeal involves the single issue of the correctness of the Magistrate’s conclusion. Upon the authority of the cases of Cannon v. Cox, 98 S. *541 C., 185; 82 S. E., 399, and Johnston-Crews Co. v. Polk, 118 S. C., 470; 111 S. E., 15, the judgment in the first action is res adjudícala of the matters set forth in the second, and upon the authority of the case of McMahan v. McMahon (S. C.), 115 S. E., 293, the plaintiffs are es-topped by their election to pursue the remedies invoked in the first action which has ripened into a judgment. Although the remedies may be distinct as held in Reynolds v. Philips, 72 S. C., 32; 51 S. E., 523, they rested upon the identical facts; and a pursuit of one to judgment is a bar to a pursuit of the other.

The order appealed from is affirmed.

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The opinion of the Court was delivered by

Mr. Justice Coti-iran.

Action in Court of Magistrate for $100.00 damages on account of the alleged conversion of a bale of cotton covered by a crop mortgage given by one Hilton to the plaintiffs ; the cotton having been seized and sold by the defendants.

Prior to the institution of this action the plaintiffs had brought an action in claim and delivery against the defendants' for the identical bale of cotton involved in the present controversy. The result of that action was a judgment in favor of the defendants. Tile plaintiff attempted to appeal from that judgment to the Court of Common Pleas, but, the notice of appeal not having been served within the time required by law, the appeal was dismissed by his Honor, Judge Shipp. No appeal was taken from his order. Thereafter this action in damages for- conversion of the same bale of cotton was instituted. The Magistrate held that the judgment in the first action was res adjudicata of the matters involved in the second action and dismissed the acfion. Upon appeal to the Circuit Court his Honor, Judge Wilson, sustained the judgment of the Magistrate, and dismissed the appeal.

1,2 The present appeal involves the single issue of the correctness of the Magistrate’s conclusion. Upon the authority of the cases of Cannon v. Cox, 98 S. *541 C., 185; 82 S. E., 399, and Johnston-Crews Co. v. Polk, 118 S. C., 470; 111 S. E., 15, the judgment in the first action is res adjudícala of the matters set forth in the second, and upon the authority of the case of McMahan v. McMahon (S. C.), 115 S. E., 293, the plaintiffs are es-topped by their election to pursue the remedies invoked in the first action which has ripened into a judgment. Although the remedies may be distinct as held in Reynolds v. Philips, 72 S. C., 32; 51 S. E., 523, they rested upon the identical facts; and a pursuit of one to judgment is a bar to a pursuit of the other.

The order appealed from is affirmed.

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Bluebook (online)

115 S.E. 814, 122 S.C. 539, 1923 S.C. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-m-davis-son-co-v-stukes-sc-1923.

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