Dissenting Opinion.

[ 106 S. C. Court was rendered, the defendant had the deed in its possession, but did not call it to the attention of either Court.

In the case of McNair v. Alex, 105 S. C. 445, 90 S. E. 23, after the notice of lis pendens was filed, the defendant's wife, with whom he was not living, took a deed from a third party. A rule was issued to show cause why she should not be dispossessed. She pleaded title in herself, and showed her deed and made this same claim of a want of due process of law. Neither the grantor nor grantee were parties to the This Court ordered her to give possession notwithstanding her deed.

cause.

In the instant case both grantor and grantee were parties to the cause. This is a much stronger case than McNair v. Alex. The doctrine of "due process of law" does not limit the rule as to the conclusiveness of a final judgment. The rule as to the conclusiveness of a final judgment is that it is conclusive, not only as to matters that were before the Court, but also as to those matters that should have been before the Court, and were not. The rule of due process of law is fulfilled when a party has been given an opportunity to present his whole case. A defendant cannot plead, in answer to ejectment proceedings, that he is not a tenant, but the owner; that he went into possession under a parol contract to purchase; that he has paid the purchase money and made valuable improvements, and then when he loses on that issue, refuse to quit because he has an absolute conveyance signed by him who claims to be the landlord. The Courts have the right to assume that both parties have disclosed their whole The nature of a final judgment is such that that part of the plaintiff's or defendant's case that is not disclosed is thrown away. There would be no end to litigation if another suit was necesssary to carry out the mandate of the Court. In fact, there would be an endless chain of valueless judgments.

case.

The right of the Court to order restitution, even when the judgment was reversed for want of jurisdiction, is recognized in Northwestern Fuel Co. v. Brock, 139 U. S. 216, 11 Sup. Ct. 523, 35 L. Ed. 151. This case is much stronger, because the Court had jurisdiction and the deed was made pendente lite and all parties were before the Court.

9541

SPENCE v. SOUTHERN RY. CO.

(90 S. E. 750.)

1. COSTS-ON APPEAL-AFFIRMANCE.-A judgment against a railroad company for overcharge of freight rate and statutory penalty was affirmed in the Supreme Court on condition that the plaintiff, within 20 days, remit the penalty, and plaintiff duly complied with the condition. Held, the judgment was an affirmance, and plaintiff, as the prevailing party, was entitled to tax the costs of appeal.

2. COURTS JURISDICTION OF STATE COURTS-RECOVERY OF FREIGHT OVERCHARGES IN INTERSTATE COMMERCE.-State Courts have jurisdiction of actions to recover overcharges of freight rates on interstate shipments, where no question of the reasonableness of the rate is involved.

Before RICE, J., Chester, November, 1915. Affirmed.

Action by Willie Spence against the Southern Railway Company. From a judgment for plaintiff, defendant appeals.

Messrs. B. L. Abney and McDonald & McDonald, for appellant, cite: Code Civil Proc., secs. 361, 365, 409 and 412; Civil Code, secs. 4204, 4207; 25 S. C. 243; 44 S. C. 376; 41 S. C. 206; 79 S. C. 388; 95 S. C. 217; 22 S. C. 313; 79 S. C. 389; 37 S. C. 159 and 445; 41 S. C. 206; 43 S. C. 262; 39 S. C. 388; 93 S. C. 316; 95 S. C. 217. As to jurisdic

FOOTNOTE. As to jurisdiction of State Court in action for refusal of interstate shipment where no administrative question is involved, see Pennsylvania R. Co. v. Sonman Shaft Coal Co., 37 Sup. Ct. Rep. 46.

tion: 225 U. S. 243; 237 U. S. 121; 240 U. S. 632; 235 U. S. 651.

Messrs. Marion & Marion, for respondent, cite: As to prevailing party: 41 S. C. 206; 44 S. C. 376; 79 S. C. 388; 37 S. C. 417; 39 S. C. 465; 42 S. C. 329; 95 S. C. 217; 93 S. C. 316; 19 S. C. 455. Jurisdiction: 90 S. C. 475.

October 12, 1916.

The opinion of the Court was delivered by MR. JUSTICE HYDRICK.

This appeal questions the right of the respondent in a former appeal to tax the costs thereof against the appellant therein, notwithstanding the judgment appealed from was affirmed upon a condition-that part of the recovery be remitted-which was performed. The action was brought in the Court of a magistrate to recover $6.20, an admitted overcharge of freight growing out of an error in the weight of an interstate shipment, and the penalty allowed by statute for the failure of defendant to pay the claim therefor within 40 days after the filing thereof. Plaintiff had judgment for the full amount of the claim and the penalty. On appeal from that judgment, this Court held, following the decision of the Supreme Court of the United States in C. & W. C. Ry. v. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 57 L. Ed. 1137, Ann Cas. 1916d, 333, that the statute was void as applied to interstate commerce, and rendered judgment as follows:

"The penalty must, therefore, be remitted. If this is done within 20 days after notice of the filing of the remittitur, the judgment will stand affirmed; otherwise a new trial is ordered." 101 S. C. 436, 85 S. E. 1058.

The penalty was duly remitted, and, the condition upon which the judgment should stand affirmed having been per

1

formed, respondent was allowed to tax the costs of the appeal against appellant, as upon a judgment affirmed, on the authority of Stepp v. Association, 41 S. C. 206, 19 S. E. 490; Young v. Cohen, 44 S. C. 376, 22 S. E. 409, and Salley v. Ry., 79 S. C. 388, 60 S. E. 938.

The cases cited, and others that might be added, sustain the ruling of the Circuit Court. Appellant's attorneys concede this, but they contend that these cases have been overruled by the more recent cases of Burnett v. Senn, 93 S. C. 316, 76 S. E. 820, and Brown v. Kolb, 95 S. C. 217, 78 S. E. 894. But in this they are in error. The cases of Burnett v. Senn and Brown v. Kolb rest upon different principles, and are easily distinguished from the cases first above cited and from this case.

In Burnett v. Senn plaintiff sued for $598. Defendant admitted that he owed plaintiff $37.51, and tendered him that amount, with costs to date of tender, which was refused. Nevertheless the Circuit Court rendered judgment, dismissing the complaint with costs against plaintiff. On appeal that judgment was reversed, and the case was remanded, with instructions to enter judgment for plaintiff for $37.51, the amount admitted to be due him, with costs to date of tender. 91 S. C. 175, 74 S. E. 376. Although plaintiff succeeded in reversing the judgment, it was held on a second appeal, involving his right to tax costs, that he was not entitled to tax any costs against defendant that accrued subsequent to the tender, including the costs of the appeal, on the ground that he failed to recover any more than had been tendered him, and, therefore, all subsequent litigation was caused by his wrongful act in refusing the tender and in trying to recover more than was due him. So, in this case, if defendant had tendered plaintiff the $6.20 which was admitted to be due him, and plaintiff had refused it, and had persisted in litigating for the penalty, this case would

Opinion of the Court.

[ 106 S. C. have fallen within the principle upon which Burnett v. Senn was decided. But no tender was made. True, the record shows that defendant wrote plaintiff a letter, admitting that it owed him $6.20, which it was prepared to pay. But that was not a legal tender, such as would prevent the plaintiff suing therefor from recovering costs. Moreover, when plaintiff sued to recover $6.20 and the penalty, defendant resisted his right to recover, not only the penalty, but the $6.20 also.

1

In Brown v. Kolb the judgment of the Circuit Court was modified by a reduction of the amount thereof. It was not affirmed on condition, as was the judgment in this case. To be sure, the result is practically the same when a judgment is modified on appeal as when it is affirmed upon a condition which is performed, except as to the right to tax the costs of appeal. But, as pointed out in the cases first cited herein, there is a material difference in the legal effect of the two forms of judgment. Where it is modified, this Court renders the final judgment, or directs how it shall be rendered, and ends the litigation. But where it affirms a judgment upon a condition, it is optional with the party of whom the condition is required whether he will perform it, or decline it, and continue the litigation. Now, in this case, if plaintiff had declined to remit the penalty, then the judgment would have been reversed, and appellant would have been the prevailing party on the appeal; but, as the penalty was remitted, the judgment was affirmed, and the respondent was the prevailing party, and, therefore, entitled to tax the costs of the appeal.

We see nothing in this construction of our statutes regulating the costs that denies to the appellant in this case, or, indeed, to any litigant, the equal protection of the laws, or deprives any one of his property without due process of law. The same rule is applied to all litigants similarly situated.