March 12, 1930. The opinion of the Court was delivered by This action by the plaintiff, Stewart-Jones Company, a corporation, against the defendants, Mrs. M.B. Hankins, D.B. Hankins, and R.L. Shehan, was commenced in the Court of Common Pleas for York County, May 8, 1925, for the recovery of a certain lot of land in the city of Rock Hill, together with rents and profits for the use of the same. Upon issues being joined, the cause was referred to J.A. Marion, Esq., as Special Referee, to take the testimony and pass upon the issues involved. The Referee's report contains a full and clear statement of the case, and should be incorporated in the report of the case. There are several defenses set up in the defendants' answer, but the Referee did not consider it necessary to consider but one of the defenses relied upon by the defendants; namely, that before the commencement of this action the plaintiff brought an action in the *Page 253 same Court (Court of Common Pleas for York County) against the same defendants named in this action, on substantially the same allegations as are set forth in the complaint in this action, for recovery of possession of the same lot of land involved in this action; that said former action, having been heard on the merits, was dismissed for failure of proof by the plaintiff of the allegations of the complaint; and that the action now before the Court was commenced by the plaintiff without the payment of the costs in the said former action, which was a condition precedent to its right to bring this action. The Referee sustained this defense, and his finding and holding was confirmed by the Circuit Judge, Hon. J.K. Henry, who heard the case on the report of the Referee. In our opinion, the conclusion reached by the Circuit Judge is well supported by the facts and law of the case.
Therefore, the judgment of the Circuit Court is affirmed.
MR. CHIEF JUSTICE WATTS and MESSRS. JUSTICES BLEASE and STABLER concur.