So. Ca. R. R. v. Toomer

30 S.C. Eq. 270

• Court: Court of Appeals of South Carolina
• Decided: January 15, 1857
• Status: Published

Opinion

The opinion of the Court was delivered by

JOHNSTON, Ch.

The defendants, though perhaps not amenable under this bill, as a bill of interpleader, submitted to the jurisdiction, and, of course, to the decree proper to be made in such a case.

If an action had been ordered, the appeal would have been to the Law Court of Appeals, from the trial had ; otherwise, when the order is of an issue, or an issue in the nature of an action. In such cases the motion must be made, on the return of the issue, in. the Court from which it emanated, — not by way of appeal, but for another issue or a new trial, — if that Court is not satisfied with what has been done.

(a)

We have no'doubt, in this case,it was not requisite to order an action. The question was similar to what occurs in cases of purchase of lands. To ascertain whether the purchaser is bound to accept the titles, the titles are referred, and if a good title is reported, the decree is made for specific execution of the contract.

We would remark, that if an action, and not an issue, had been tried in this case, it would by no means follow, that a provision of law which entitles a 'plaintiff., who has brought suit and been nonsuited, let fall his action, or had a verdict against him, to bring a second action within a statutory period, would entitle a defendant, against whom a verdict has been rendered, to turn round and sue the plaintiff

On the other grounds, we concur with the Chancellor; and his decree is affirmed, and the appeal dismissed.

DunkxN, Dargaw and Wardlaw, CO., concurred.

Appeal dismissed.

Lubé, Eq. PI. 161; Adams’ Eq. 378.