Opinion
12893
April 15, 1930.
Before WHALEY, J., County Court, Richland, February, 1929. Appeal dismissed.
Action by O.D. Rhame against the B.B. Kirkland Seed Company. From an order requiring plaintiff to elect upon which of two separate causes of action he would go to trial, plaintiff appeals.
Messrs. Brantley Zeigler, for appellant, cite: Motion to elect came too late: 1 Civil Code, 1922, Sec. 401, Subdv. 5, Sec. 405; 47 S.C. 211. Causes of action for breach of contract, fraud and deceit separately stated properly combined: 105 S.C. 25. Action for fraud rests on affirmance and not rescission of contract: 27 C.J., 16, Secs. 126, 127, 128, 130, 145; 79 S.C. 205; 128 S.C. 151; 138 S.C. 74; 141 S.C. 98; 167 U.S. 1; 140 A.S.R., 509. No distinction between fraud in making and in breach of contract: 13 C.J., 382, Sec. 280; 13 C.J., 395, Sec. 304. Fraud does not have to be specifically pleaded: 117 S.C. 137. Case unlike: 130 S.C. 513.
Messrs. Melton Belser, for respondent, cite: Motion to elect need not be made until call for trial: 130 S.C. 115. Cause of action inconsistent: 116 S.C. 231; Bliss Code P1. Sec. 122. Order to elect proper: 136 S.C. 235; 1 C.J., 1086, 1088; 116 N.Y.S., 1110; 111 N.Y.S., 462; 110 N YS., 663; 102 N.Y.S., 1039; 23 How. Pr., 302; 12 How. Pr., 331; 1 C.J., 1075.
April 15, 1930. The opinion of the Court was delivered by
The plaintiff, O.D. Rhame, commenced this action against the defendant, B.B. Kirkland Seed Company, in the County Court of Richland County, June 23, 1928, for the recovery of damages in connection with the sale of some pea seed by the defendant to the plaintiff. The alleged wrongs by the defendant to the plaintiff were stated under two separate causes of action. The case came on for trial before Hon M.S. Whaley, Judge of said Court, and a jury February 8, 1929. On the call of the case for trial, upon written motion filed by the defendant, the trial Judge ordered the plaintiff to elect upon which of the alleged causes of action he would go to trial, and in obedience to the order of the Court the plaintiff elected to proceed to trial under the first alleged cause of action. The trial resulted in a verdict for the defendant. The plaintiff thereafter, within due time, filed notice of intention to appeal, and thereafter served his exceptions, all of which impute error to the trial Judge in requiring the plaintiff to elect upon which alleged cause of action he would proceed to trial.
The exceptions present several interesting questions, but, so far as the record discloses, the plaintiff is appealing solely from the order of the trial Judge requiring him to elect. There is no appeal from the verdict of the jury and the entry of judgment thereon. Therefore the questions raised by the exceptions become moot questions. After entry of final judgment in a case prior intermediate orders cannot be reviewed except upon appeal from the final judgment; and there being no appeal in this case from the final judgment; it is proper that the appeal from the intermediate order of Judge Whaley, directing the plaintiff to elect, should be dismissed. It is so ordered, and the appeal dismissed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICE COTHRAN, BLEASE and STABLER concur.