Opinion
12853
March 12, 1930.
Before MANN, J., Lancaster, October, 1928. Affirmed.
Action by Nannie Logan and others against Lena H. Jones, administratrix. Judgment for defendant, and plaintiffs appeal.
The order of M.M. Mann, Circuit Judge, is as follows:
On February 13, 1924, John W. Caston, Nannie Logan, Alfred I. Craven, Cornelia Craven, Clara Pippin and John Maxwell Bobo, Jr., brought their action against Charles D. Jones for the recovery of four acres of land, alleging that they were seized in fee simple. On the same day John W. Caston, Nannie Logan, Alfred I. Craven, Cornelia Craven, Clara Pippin, John Maxwell Bobo, Jr., and John B. Williams, brought their action against Charles D. Jones for the recovery of the same four acres of land under the same allegations of being seized in fee simple. The only difference in the captions of the two complaints is that John B. Williams is added as a party plaintiff. On October 27, 1924, on motion of plaintiffs' attorney, these cases were dismissed and discontinued, and the costs in both paid by plaintiffs. On October 26, 1926, an action to recover the same land, under the same allegation, was begun by Nannie Logan, Cornelia Craven Goddard, Clara Pippin, Alfred Craven, Emma Agnes Caston, Mrs. Mae Porter, Mrs. Maude Lee Pentuff, Mrs. Ola M. Owens, Clinton Caston, John Frederick, George Mittag, Julia Fenall Murry, and John Maxwell Bobo, Jr., against the same defendant, Charles D. Jones, for the recovery of the same land. It will be noticed that the plaintiffs in the first two actions are identical, except that in the second John B. Williams is added as a plaintiff.
In the third action, Nannie Logan, Cornelia Craven Goddard (Cornelia Craven having married james L. Goddard since the first two actions), Alfred I. Craven, and John Maxwell Bobo, Jr., are still parties, John W. Caston and John B. Williams are eliminated as parties plaintiff, and Emma Agnes Caston, Mrs. Mae Porter, Mrs. Maude Lee Pentuff, Mrs. Ola M. Owens, Clinton Caston, John Frederick, George Mittag, and Julia Fenall Murry added, so it appears that one new plaintiff was added to the second action and seven new plaintiffs were added to the third action. The three actions are for the recovery of the same land and are against the same defendant. It does not appear why the parties were not the same in all the actions, but defendant's counsel argues that the new parties claim under the same parties that were eliminated as plaintiffs in the first and second actions, and that they would have no greater rights than the ancestors, grantors through whom they claim.
The second paragraph of the complaint herein alleges: "That some of the above-named persons and others, as plaintiffs, heretofore brought two actions against the said Charles D. Jones, for the large lot of land, situate, lying and being in the Town of Lancaster, County and State aforesaid, of which the lots hereinabove described are a portion, which actions were discontinued by the plaintiffs, by an order in said cases, granted by the presiding Circuit Judge on the 27th day of October, 1924, and that said plaintiffs paid all of the costs and disbursements of the said actions on the 9th day of October, 1926." This paragraph shows that two actions have heretofore been brought by the plaintiffs and others against the same defendant for the same land, that those actions have been dismissed, and that plaintiff paid the costs.
The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, in that Paragraph 2 of the complaint shows that previous to the present action the plaintiff brought two separate actions for the recovery of the land in question, which were discontinued on motion of plaintiffs' attorney, by the presiding Judge, on the 27th day of October, 1924; whereas by subdivision 2, Section 317, of the Code of Procedure, actions for the recovery of land, on the possession thereof, are limited to two, and no more are allowed.
The defendant relies for the success of his motion on the provisions of Code, Vol. 1, § 317, subd. 2, and the authorities construing that Section cited by him. The Section reads as follows (subdivision 2): "The plaintiff in all actions for recovery of real property, or the recovery of the possession thereof, is hereby limited to two actions for the same, and no more: Provided, That the costs of the first action be first paid, and the second action be brought within two years from the rendition of the verdict or judgment in the first action, or from the granting of a nonsuit or discontinuance therein." What does it mean? It relates to the individual bringing an action, and to the class of property sought to be recovered in that action, and is clearly a restriction on what otherwise would be the right of that individual in reference to his legal status as to that property. In the absence of the statute, he could bring as many actions as he chose for the recovery of the same real estate; it limits him to two actions and no more, and he cannot bring his second action until the costs of the first shall have been paid. Here two actions for the recovery of the same real estate against the same defendant have been brought and dismissed; can a third be brought and sustained by the same parties merely by adding other parties as plaintiffs? If that be true, then a party may bring his action for the recovery of real estate, and dismiss and pay costs, bring his second within two years, dismiss and pay costs, add some other party, real or fictitious, and bring another action despite the fact that he has had two actions dismissed, and so on ad infinitum. The statute would be a nullity because it would be evaded by merely adding new parties as plaintiffs; the same plaintiff could sue any number of times, and the defendant have no rest from him. As stated, the Section cited relates to the person; it limits his right as to the number of actions he may bring for the recovery of real estate. Shall he be allowed to evade its plain provisions by what could easily be mere subterfuge? The records disclose that John W. Caston, Nannie Logan, Alfred I. Craven, Cornelia Craven, Clara Pippin, and John Maxwell Bobo, Jr., have heretofore brought two actions for the recovery of the real estate described in the complaint; that those two actions have been dismissed and ended by an order of this Court. The statute says a person is limited to two actions for the recovery of real estate. How can these plaintiffs be allowed three? If the new parties plaintiff claim from any of those named above, how can they maintain this action if their ancestors or grantors cannot? If the parties are substantially the same; if they claim title from the same source, the statute would apply to them, and they could not maintain a third action for the recovery of land against the same defendant. I hold that John W. Caston, Nannie Logan, Alfred I. Craven, Cornelia Craven Goddard, Clara Pippin, and john Maxwell Bobo, Jr., have been plaintiffs in two former actions against Charles D. Jones, for the recovery of the real estate described in the complaint, that those two actions have been dismissed and ended, and that they, nor any one claiming title through them, can maintain another action against the same party for the recovery of the same real estate. I make no ruling as to whether or not the new parties plaintiff here can bring an action against the defendant for any alleged interest they may have, if they do not claim title through the above parties or from the same common source. The statute was enacted, not only to limit the right of a person to two actions for the recovery of real estate, but it was intended also to protect a person in possession of, and claiming title to, real estate. Such person has a right some time to be relieved of continued attacks on his title by the same person, or those claiming under him. It is a statute of repose, and should be so construed. Walsh v. Evans, 112 S.C. 131, 99 S.E., 546; Water Power Co. v. Land Co., 47 S.C. 125, 25 S.E., 48; Mitchum v. Shaw, 98 S.C. 177, 82 S.E., 401; Water Power Co. v. Land Co., 42 S.C. 489, 20 S.E., 378, 540; Love v. Turner, 84 S.C. 178, 65 S.E., 1043.
It is therefore, on motion of Harry Hines, Esq., defendant's attorney, ordered, that the demurrer be sustained, and the complaint dismissed.
Messrs. John T. Seibels, and Percy T. Stiers, for appellants, cite: Plea of res judicata interposed by answer: 1 C. J., 115; 34 C.J., 1055; 177 U.S. 649; 34 S.C. 468. Election once made irrevocable: 227 Fed., 526; 21 Ga. A., 526; 36 S.C. 596; Id., 424; 160 U.S. 584; 20 C.J., 30. Amended pleading relates back to original commencement: 35 S.C. 127; 60 Mo. A., 380; 36 S.C. 344; 1 C.J., 1160; 99 Fed., 888; 88 N.E., 651; 93 N.Y., 652. Action of one co-tenant cannot be used as bar to rights of other co-tenants: Rich. Eq., 205; 69 N.W., 706; 13 C.B.N.S., 12. Demurrer: 127 S.C. 508; 121 S.C. 484; 115 S.C. 421; 44 S.C. 144; 57 S.C. 506; 64 S.C. 389; 87 S.C. 257; 141 S.C. 86. Messrs. Charles D. Jones, and Harry Hines, for respondents.
March 12, 1930. The opinion of the Court was delivered by
The conclusions reached by his Honor, Circuit Judge Mann, in this case are satisfactory to this Court. His order, which will be reported, is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES STABLER and CARTER concur.
This is an appeal from an order of his Honor, Judge Mann, sustaining a demurrer to the complaint, upon the ground that it shows upon its face, that the action is one for the recovery of real estate, and that it is the third action upon the same cause of action, contrary to the provisions of Section 317 of the Code of Civil Procedure, which limits such actions to two.
The following facts appear in the transcript of record: On February 13, 1924, certain plaintiffs brought an action for the recovery of a certain square of land in the City of Lancaster; on the same day, the plaintiff discovering that one of the interested parties had been omitted as a party plaintiff and that one of the plaintiffs had been improperly named, prepared, and had served a new summons and a new complaint making the corrections. The defendant answered both complaints, and did not plead the pendency of the first action. At the October, 1924, term of Court, the plaintiffs took an order in each case discontinuing it and paid up the costs of both supposed actions. The plaintiffs then brought the present action, serving new summons and complaint. They were the same as in the other proceedings, except that one of the plaintiffs had in the meantime died and his heirs were among the plaintiffs and two other parties were named as plaintiffs.
Counsel for the plaintiffs evidently were inadvertent to the fact that it was not necessary to institute a new action to correct the omission and mistake above referred to, which could have been readily corrected by amendment. Manifestly this was their purpose, and I think that the second action should be considered merely an amendment to the first. That being so, the present action is the second action, and should be so considered as within the limitation of Section 317.
It is insisted that the plaintiffs are concluded by the allegation in the present complaint: "That some of the above named persons and others heretofore brought two actions against the said Charles D. Jones for the lot," etc. If as a conclusion of law it appears that there were not two actions, but that the second was but an amendment of the first, we do not think that the plaintiffs should be held to their misconception.
It follows that the order sustaining the demurrer was erroneous and should be reversed.