Columbia Water Power Co. v. Columbia Land &c. Co.

Citations

• 42 S.C. 488
• 20 S.E. 378
• 1894 S.C. LEXIS 64

Syllabus

<p>1. Recovery oe Land — Second Action — Costs.—Under the statute limiting the right to bring action for the recovery of land to two actions, provided that the costs of the first action be first paid, and the second action be brought within two years from the granting of a discontinuance in the first action, a second action, after order of discontinuance of a first action, cannot be brought unless the costs of the first action be first paid, and if not so paid, the second action must fail.</p> <p>2. Ibid. — Discontinuance.—If a judgment can be entered in any case on an order of discontinuance granted on plaintiff’s motion, such a judgment is not necessary to a termination of the first action for recovery of land under this statute.</p> <p>3. Ibid. — Rule oe Court. — The old statutes on this subject reviewed and the present law declared to be as above stated, and to override an existing rule of court, which was adopted before this statute was enacted, and because a rule of court cannot violate a statutory requirement.</p> <p>4. Ibid. — Second Action — Waiver.—This statutory provision was not intended only as a benefit to defendant, but to fix a condition to the privilege accorded to plaintiff. Nor did defendant waive his rights by failing to have the costs of the first action taxed, or by failing to demand payment, or by urging a trial of the second action with knowledge that the costs of the former action were unpaid.</p> <p>5. Discontinuance. — The statement in the order of discontinuance, that it was taken for the purpose of bringing another action, did not authorize a second action on terms other than those fixed by the statute.</p> <p>6. Recovery oe Land — Second Action — Costs.—The court could not assume that there were no costs in the former action because none had been taxed, where costs are given by statute, and where plaintiff made payment at the trial of the costs of the first action, as then stated by the clerk of court.</p> <p>7. Long Possession oe Land.