Williams v. Wannamaker

115 S.E. 637, 122 S.C. 368, 1923 S.C. LEXIS 20

• Court: Supreme Court of South Carolina
• Decided: January 18, 1923
• Docket: 11102
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Fraser.

There are several exceptions, but only one question need lie considered.

The plaintiffs brought their action against the defendants for partition. The judgment was for the defendants. The plaintiffs paid the costs, and within two years brought this action by the same parties, and for the same cause of action.

The plaintiffs claim the right to bring this second action under Section 123 of the Code of Civil Procedure. These actions were for partition.

The general rule is-unquestionably that one action between the same parties, for the same cause of action, can be sustained. The first judgment is res ad judicata. There is an'exception, and that exception is made by Section 123, supra.

It was held in Elmore v. Davis, 49 S. C., 2; 26 S. E., 898; Foster v. Foster, 81 S. C., 307; 62 S. E., 320, and other cases, that actions for partition are not included within the provision of Section 123. Indeed, the case of Carr v. Mouzon, 93 S. C. (upon which the appellants rely), at page 166; 76 S. E., 201; Ann. Cas., 1914C, 731, distinctly recognizes the rule.

The judgment is affirmed.

Mr. Chiee Justice Gary did not sit.