The opinion of the Court was delivered by
Mr. Justice Gary.When this case was called for trial on Circuit, the defendant demurred to the complaint on the grounds hereinafter stated. After argument of counsel, the *439Circuit Judge announced that he would sustain the demurrer; whereupon the plaintiff moved to be allowed to amend his complaint, and' after argument his Honor signed the following order: “The above cause having been called for trial and the complaint having been read, the defendant interposed an oral demurrer on the ground that it does not state facts sufficient to constitute a cause of action, ordered, that the demurrer be sustained, and that plaintiff have leave to amend the complaint upon payment of the costs of this term.” The plaintiff appealed from said order, and his appeal was dismissed by the Supreme Court (51 S. C., 317). Thereafter the plaintiff asked for an order substituting the executors of Fielding Cantrell, deceased. This was resisted by the defendants, who proposed the following order: “It appearing to the satisfaction of the Court that a demurrer was interposed to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action against the defendants, and that leave was granted the plaintiff to amend his complaint upon the payment of costs of the term; and that more than twenty days had elapsed since the said order was passed without the plaintiffs complying or offering to comply with this order; and it further appearing that the plaintiff elected not to comply with the same, and appealed to the Supreme Court therefrom, and that said appeal has been dismissed, and that the remittitur is filed in the office of the clerk of this Court, on motion of Duncan & Sanders, attorneys for the defendants, ordered: That the complaint be dismissed, and that the defendants have judgment against the plaintiff for the costs and disbursements of the action.” His Honor, Judge W. C. Benet, refused to pass the order proposed by defendants, but signed the following order: “It appearing that the defendant, Fielding Cantrell, has lately died intestate, ordered: That F. T. Cantrell and E. C- Jamerson, as executors of Fielding Cantrell, deceased, be and they are hereby substituted as parties defendants in the place and stead of Fielding Cantrell, deceased.”
The following statement appears in the record: “On the *440next day and at same term of Court, defendants moved to rescind the order his Honor had signed, substituting the executors of Fielding Cantrell, etc., and to dismiss the cause, stating that after his Honor, Judge Watts, had sustained their demurrer to the complaint, counsel for plaintiff had informed defendants that they would not amend, but would appeal from the order sustaining the demurrer; and that this fact was not in the record before the Supreme Court when the appeal from Judge Watts’ order was heard. His Honor refused the motion, and held that this additional fact would not make any difference, and that under the decision of the Supreme Court in this cause, he was bound to hold that plaintiff now had the right to pay the costs and amend.”
The appellant’s exceptions complain of error on the part of the Circuit Judge as follows: “I. In ruling and holding that the plaintiff now had the right to amend his complaint under the order of his Honor, Judge Watts. II. In ruling and holding that the cause should be continued, and that the executors of Fielding Cantrell should be made parties defendants. III. In not ruling and holding that the plaintiff, by refusing or declining to amend his complaint under the order of his Honor, Judge Watts, and by appealing therefrom, had elected not to amend, and could not now be allowed to do so. IV. In not rescinding the order continuing the cause, and ordering the executors of Fielding Cantrell to be made parties, and allowing the plaintiff to amend his complaint under the order of Judge Watts, after it was called to his Honor’s attention, that just after the term of Court at which Judge Watts had passed his order sustaining the demurrer and allowing the plaintiff to amend upon payment of costs, plaintiff had informed defendant’s counsel that he would not amend, but would appeal from said order. V. In holding that the fact that plaintiff had informed defendant’s counsel that he would not amend, but would appeal from the order of his Honor, Judge Watts, would make no difference, as he was bound under the decision of the Supreme Court to hold that plaintiff now had the right to *441amend; whereas, his Honor 'should have held that plaintiff had elected not to amend. VI. In npt passing the order proposed by the defendants.”
The exceptions will not be considered in detail, as the only practical question raised by them is whether the fact that plaintiff’s attorney informed the defendant that he would not amend his complaint, but would appeal from the order sustaining the demurrer, was a waiver of his right to amend. The fact that the plaintiff appealed from the order of his Honor, Judge Watts, did not alone have the effect of depriving" him of the right to amend. The plaintiff had the same time within which to amend after the remittitur was sent down when the former appeal was dismissed, as he would have had under the order of his Honor, Judge Watts, if the appeal had not been taken. Barnwell v. Marion, 56 S. C., 54. When the plaintiff heretofore appealed from the order of his Honor, Judge Watts, the defendant gave notice that he would ask that the order of the Circuit Court would be sustained, on the additional ground that by asking the Court to be allowed to amend his complaint, the plaintiff had waived his right to appeal. In disposing of the former appeal in this case, the Court said: “There is nothing in the record to show whether the plaintiff has or will accept or decline the privilege granted him to amend; and in the absence of any such showing, we are bound to assume that the plaintiff either has or will accept the privilege, which he himself asked for. If he has already done so, or will hereafter do so, then the question whether there was error in sustaining the demurrer to the complaint as originally framed becomes a purely speculative question, which this Court will not consider * * * We are of opinion, therefore, that the plaintiff by the course which he has taken has waived his right to appeal from the order sustaining the demurrer; and for this reason, without considering any of the questions which he has attempted to raise, by his exceptions, his appeal must be dismissed.” In the case of Bowen v. Stribbling, 47 S. C., 61, the Court uses this language: “The defendant’s *442attorneys made the motion to have the case referred on the ground that there was a partnership necessitating such reference. They cannot now raise the question that there was no partnership.” As the former appeal in this case was dismissed at the suggestion of the defendant’s attorneys on the ground that the plaintiff either had or would amend his complaint, they thereby waived the right to object to the amendment.
It is the judgment of this Court that the order of the Circuit Court be affirmed.