I cannot concur in the opinion of Mr. Justice Hydrick herein. I concur in so much *Page 500 of his opinion as sustains Judge Copes in overruling the demurrer filed by the defendant to the complaint of plaintiff on the ground there was no merit in it. The fact that the defendant did not file a certificate that it was meritorious is, in my opinion, immaterial, as he accompanied the demurrer with an affidavit, which was a substantial compliance with the rule, as defendant is not a practicing attorney, but only exercised his constitutional right to appear in person and defend. I think some latitude and discretion should be exercised in the interest of substantial justice, and while it is true that Mr. Justice Haskell says, in Rice v. Mahaffey,9 S.C. 283, "Rules do not make laws, but they regulate practice and should be enforced," in this case the filing of the affidavit, with the demurrer, took the place sufficiently of a certificate for the demurrer to be heard on its merits and his Honor, however, was right in overruling the demurrer. I, however, think that his Honor erroneously exercised his discretion in refusing to allow the defendant to answer on the merits, even though defendant did not make affidavit that he had a substantial and meritorious defense. The record itself before the Court showed that another action between the same parties, affecting the same subject matter, was pending in Greenwood county. That the plaintiff's attorneys has served notice that they had discontinued that action. This was not sufficient. The plaintiff had the right to take an order of discontinuance and let the costs be taxed or to have served notice that she would discontinue and offer to let the costs be taxed. The defendant was entitled to have his costs taxed and paid and until this was done, or he was put in a legal position to have it done, plaintiff was not entitled to prosecute another action.
Rule LX of Circuit Court is, "Where a party has suffered a nonsuit or discontinuance or has otherwise let fall his action, all proceedings in any new action for the same cause shall be suspended until all costs of such former action shall have been paid." It was incumbent on the part of the *Page 501 plaintiff to comply with this rule before she could prosecute another action to judgment. I think upon the record in the case that defendant should have been allowed to answer on the merits and if this was denied that his Honor should have suspended the case until the costs of former cases were paid. I do not think that it is the duty of a Circuit Judge to, alone as it were, referee an intellectual combat between the attorneys of opposite sides, but upon the whole case before him see that the litigants' rights are protected. I do not think the practice of granting decrees where testimony is required, unless that testimony is reduced to writing and perpetuated in some permanent form, is to be commended, and where damages claimed are unliquidated, even though default is made by failure to answer. Even under these circumstances, in my opinion, the party defaulting, if he saw fit to exercise the right, could appear and cross-examine the witnesses put up to establish facts required to be proven to obtain judgment.
The decree in this case is too sweeping to have been granted without the testimony to support it being reduced to writing by the Court or under the direction of the Court.
I think the decree should be reversed and case remanded with leave to defendant to answer under such terms as the Circuit Court sees fit to impose.
MR. JUSTICE FRASER concurs.