9167

#### CANNON v. ATLANTIC COAST LINE RAILROAD CO.

(86 S. E. 4)

Actions. Judgment Granting Leave to Amend. Costs.

1. Actions — Judgment Granting Leave to Amend. — Where an order dismissing a complaint is affirmed, with leave to apply for permission to amend the complaint, and such permission is promptly applied for and obtained, the original action is continued by service of such amended complaint.

2. Costs. — No rule requires an action to be suspended until' costs and disbursements theretofore accruing and taxed therein shall have been paid.

Before SeasE, J., Charleston,

April, 1915.

Affirmed.

Action by F. S. Cannon against Atlantic Coast Line Railroad Company. From an order refusing to suspend the action, defendant appeals. The facts are stated in the opinion.

*Mr. W. Huger FitsSimons,*for appellant,

cites: Circuit Rule 60; 67 s! C. 463.

*Messrs. W. A. Holman*and *F. M.*Bryan, for respondent,

distinguish 67 S. C. 463.

August 24, 1915.

The opinion of the Court was delivered

by Mr. Justice Fraser.

Appellant states his cause as follows:

> “This action was commenced January 13, 1913. The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The Circuit Judge, Judge Bowman, sustained the demurrer and dismissed the complaint. The case was appealed from Judge Bowman’s order and is reported in 97 S. C., page 233, 81 S. F. 476. The Supreme Court affirmed the judg-

> *503ment of Judge Bowman, ‘with -leave, however, to the plaintiff to apply for permission to amend his complaint.’ On the 24th day of July, 1914, plaintiff served an amended complaint and defendant accepted service thereof and served its answer thereto. This amended complaint is set out in the record. On the 19th day of March, 1915, defendant served plaintiff with notice of taxation of costs and disbursements amounting to ninety-six 30-100 ($96.30) dollars, and the plaintiff’s counsel endorsed upon said statement his written consent that the taxation was correct and the clerk of the Court for Charleston county on the 25th March, 1915, taxed the costs in accordance therewith at the said sum of ninety-six 30-100 ($96.30) dollars.

> On March 25, 1915, defendant served plaintiff with the notice (set out in the record) of motion, that upon the record and proceedings herein, and upon the taxation of costs and disbursements of the former action for the same cause, the complaint in which was dismissed upon demurrer for failure to state a cause of action, it would move for an order suspending all proceedings in this action, until such costs and disbursements have been paid. This motion was heard and refused by Judge Sease April 8,1915. It is from Judge Sease’s order refusing this motion that this appeal is taken.”

1 The complaint was not dismissed, but the plaintiff was allowed to amend.

There are several exceptions, but they raise but one question, to wit: is this a new action, or a continuance of the original action?

The judgment of this Court in the former appeal (97 S. C. 238, 81 S. E. 476) is as follows :

> “It is the judgment of this Court that the judgment of the Circuit Court be affirmed, with leave, however, to the plaintiff to apply to that Court for permission to amend his complaint, provided that such application be made as soon as practicable after the remittitur is filed in that Court.”

*504Appellant conceded that an action is commenced by the service of a summons. No new summons was necessary, under the order of this Court. It does not appear that a new summons was served and no new action commenced.

2 There is no rule that requires that the “cause shall be suspended until all costs and disbursements as may be taxed by the clerk of 'such former action shall have peen paid.” The order appealed from is affirmed.