By his amended complaint the plaintiff sets forth two causes of action. It appears that the plaintiff sought to recover in his first cause of action the sum of $652.50 which he had paid for his half interest in the partnership, alleging fraud and deceit on the part of the defendant. In the second cause of action he alleges a breach of the partnership agreement by the defendant and his right to recover by an accounting of one-half of the partnership profits. It is very evident that if he is entitled to one-half of the profits of the partnership that right is based upon the fact that he was a partner. The fact that he had paid $652.50 to become a partner gave him the right to share equally in the partnership earnings. The recovery by him of the amount he had paid to become a partner because of the fraud and deceit of the defendant would, ipso facto, withdraw him from the partnership and from participation in its assets. See Singleton v. Cuttino, 107 S.C. 465;92 S.E., 1046. McMahan v. McMahon, 122 S.C. 336;115 S.E., 293; 26 A.L.R., 1295. Cline v. Southern RailwayCo., 113 S.C. 440; 102 S.E., 641. It would thus appear that the two causes of action are totally inconsistent.
To this amended complaint the defendant interposed a demurrer upon the ground that:
"The two causes of action therein set forth cannot be joined in the one complaint in accordance with the Code of Civil Procedure, and that there is a misjoinder of causes of action."
Just what provisions of the Code are relied upon to sustain this demurrer are not set forth in the notice; hence we may say that all provisions applicable to demurrers were available.
The trial Judge overruled the demurrer and, although the defendant served notice reserving his right to appeal, no *Page 520 appeal from the order was ever perfected. On the same day that notice reserving the right to appeal was served, the defendant served notice of a motion, requiring the plaintiff to elect upon which cause of action he would proceed to trial, and also his answer. The counterclaim set up in the answer was duly replied to by the plaintiff.
Thereafter the motion to elect was heard by the trial Judge, and the motion was refused upon the sole ground that "it comes too late."
The next step was a motion by the defendant to amend his answer by alleging that the two alleged causes of action are inconsistent, and that the plaintiff should be required to elect. This motion was granted by the trial Judge, in which he said that the defendant should not be deprived of his substantial right to require the plaintiff to elect. The plaintiff has appealed from this order.
Although the County Court for Richland County is in session all the time, it should not be inferred that the Judge of that Court has the right to change his orders or decrees at any time as a Circuit Judge may do in term time. Endless confusion would certainly result from such a holding. The safer rule would be to make the orders and rulings of the County Judge final when decided, except as to cases being tried when his power over his orders and rulings should end with the verdict of the jury. Motions for new trials would, of course, be governed by the well-recognized rules of law and practice.
The results of the rulings of the County Judge are that the complaint is not objectionable on demurrer to any provision of the Code, and that the motion to require an election was refused. From neither of these orders was an appeal taken, and they must be considered as binding upon the subsequent proceedings. This Court is not admitting the correctness of either order, and is not to be considered as saying that they are right or wrong. We do, however, say that *Page 521 they constitute the law of this particular case upon the points involved.
The motion to amend was an effort to have the County Judge reverse his ruling in so far as the motion to elect is concerned at least. It appears that this effort was successful, for the order granting the motion says that the defendant should not be deprived of this substantial right. Of course, it is a substantial right, but the defendant had already been deprived of it by an order of the Court from which there was no appeal.
In addition to the foregoing, allegations of inconsistent causes of action and the right to require elections have no place in answers. Such allegations could very well be stricken on motion as stating conclusions of law and not such facts as should constitute pleading to the complaint.
MR. JUSTICE MARION concurs.