Opinion
8890
July 17, 1914.
Before DeVORE, J., Gaffney, November, 1913. Modified.
Action by Nannie S. Hambright against Southern Railway — Carolina Division. From an order permitting plaintiff to amend his complaint by changing the title, so that the name of the defendant as set forth therein be Atlanta and Charlotte Air Line Railway Company, defendant, Southern Railway-Carolina Division, appeals.
Messrs. Sanders DePass, for appellant, submit: Entire change of parties defendant not permitted by Code Civil Proc. 224; 13 S.C. 397; 32 S.C. 142.
Messrs. Otts Dobson, for respondent, cite: Code Civil Proc., sec. 224. Summons and complaint was served on an agent, who represented both the Southern Railway Company, lessee, and the Atlanta and Charlotte Air Line Railway Company, the lessor, and defendant came into Court and answered to the merits: 35 S.C. 378; 46 S.C. 11; 61 S.C. 579; 67 S.C. 231; 71 S.C. 425. Sole defendant may be struck out and another substituted: 71 S.C. 425; 51 S.C. 316; 13 S.C. 495; Bailey Eq. 181; 81 S.C. 498; 13 S.C. 402. Allowance of amendment was in discretion of the Court: 18 S.C. 315; 32 S.C. 69; 48 S.C. 565. Misnomer of defendant waived by appearance and plea to merits: 31 Cyc. 737 and 738; 22 S.C. 188.
July 17, 1914. The opinion of the Court was delivered by
This is an appeal from an order allowing the plaintiff to amend the summons and complaint, by substituting the name of "Atlanta and Charlotte Air Line Railway Company," instead of the defendant, "Southern Railway — Carolina Division," also from an order refusing the motion, to allow the defendant to tax costs against the plaintiff.
The order allowing the amendment was, in effect, a dismissal of the complaint against the defendant, Southern Railway — Carolina Division, and was not prejudicial to its rights. Therefore the exception assigning error in this respect is overruled. But, as the order was, practically, a dismissal of the complaint, the defendant was entitled to its costs, and there was error in refusing to allow the defendant to tax them against the plaintiff.
Modified.