39 S.E. 192 | S.C. | 1901
June 22, 1901. The opinion of the Court was delivered by
The record in this case contains a copy of the complaint, of the order of his Honor, Judge Gage, dated 13th July, 1900, and of the order of his Honor, Judge Gary, dated 5th October, 1900, similar in all respects to the copy of the said complaint and orders set out in the case having the same title as this, in which the opinion has just been filed.
The exceptions are as follows:
"I. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in entertaining jurisdiction of this case after the same had been taken by appeal to the Supreme Court of the State, which appeal has been duly perfected.
"2. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in refusing to strike the case off docket No. 2 and place the same on docket No. 1, inasmuch much as this case involves matters properly triable by a jury.
"3. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in refusing the motion to strike the cause off docket No. 2 as having been improperly docketed, and place the same on docket No. 1, inasmuch as the defendants are entitled to a trial by jury, because the issues raised in the pleadings herein, and their right to such trial never having been waived by them, they cannot be deprived thereof by the order of the Court.
"4. Because it is respectfully submitted that his Honor, the Circuit Judge, erred in refusing to transfer the cause to docket No. 1, inasmuch as this case involves the question of title to real estate and other issues triable solely by a jury, and the case should, therefore, have been transferred." *4
Exception numbered I will first be considered. It does not appear whether the return had been filed in the Supreme Court, at the time Judge Gary granted the said order. If the return had been so filed, the Supreme Court thereby acquired jurisdiction, and the Circuit Judge, of course, was without jurisdiction to grant the order. The act approved 15th February, 1901, entitled "An act to amend section II. of the Civil Code of Procedure of this State, relating to the jurisdiction of the Supreme Court" (page 623), is not applicable to this case, as the order was made before the passage of the act. But even if the return had not been filed, the Circuit Judge did not have the power to make said order, as the case comes within the terms of section 356 of the Code, which provides that "in cases not provided for in sections 346, 350, 351, 352 and 353, the notice of appeal shall stay proceedings in the Court below upon the judgment appealed from" * * * as the case does not come within the provisions of said sections. State v.Ry. Co.,
But, as the practical question raised by the exceptions has been decided, incidentally, in the case hereinbefore mentioned, in which the opinion has just been filed, we will state the authorities sustaining our conclusion. By reference to the said order it will be seen that the ground of the motion to transfer the case from calendar No. 2 to calendar No. 1, was that it "involved matter triable by jury." The practical effect of said order was to deny to the defendants a trial by jury. It is settled beyond controversy raised by the pleadings. The complaint alleges that the plaintiffs are the owners in fee simple and are in the exclusive possession of the land therein described upon which the *5
defendants have trespassed. These allegations are denied by the defendants. This raised an issue of title which either the plaintiffs or the defendants had the right to have tried by a jury. In the case of Bank v. Peterkin,
It is the judgment of this Court, that the order of the Circuit Court be reversed. *6