Clardy v. Clardy, 115 S.E. 603

Clardy v. Clardy

115 S.E. 603 | S.C. | 1923

Lead Opinion

The opinion of the Court was. delivered by

Mr. Ci-iiEE Justice Gary.

In his decree his Honor, the Circuit Judge, uses this language :

“The late South Carolina case of Bartell v. Edwards, 113 S. C., 217; 102 S. E., 210, is cited as opposed to these conclusions. It appears to this Court, however, that the decision on the second point passed upon in the Bartell case was not necessary to dispose of the case, and might be regarded as dictum; and it further seems that this case is out of line with the current of authority in this State. No ref*459erence was made to the McFadden case, or the other previous South Carolina cases on the point. An effort was made by the defendant to harmonize this case with the other cases, but the argument was not convincing.”

The facts in Bartell v. Edwards, supra, were materially different from those in the case now under consideration; and we see no reason „to recede from the doctrine therein announced.

For the other reasons therein stated by his Honor, Judge Moore, his able decree is affirmed.

Messrs. Justices Fraser, Coti-iran, and Marion concur Mr. Justice Watts did not sit.

Lead Opinion

January 18, 1923. The opinion of the Court was delivered by In his decree his Honor, the Circuit Judge, uses this language:

"The late South Carolina case of Bartell v. Edwards,113 S.C. 217; 102 S.E., 210, is cited as opposed to these conclusions. It appears to this Court, however, that the decision on the second point passed upon in the Bartell case was not necessary to dispose of the case, and might be regarded as dictum; and it further seems that this case is out of line with the current of authority in this State. No reference *459 was made to the McFadden case, or the other previous South Carolina cases on the point. An effort was made by the defendant to harmonize this case with the other cases, but the argument was not convincing."

The facts in Bartell v. Edwards, supra, were materially different from those in the case now under consideration; and we see no reason to recede from the doctrine therein announced.

For the other reasons therein stated by his Honor, Judge Moore, his able decree is affirmed.

MESSRS. JUSTICES FRASER, COTHRAN, and MARION concur

MR. JUSTICE WATTS did not sit.

MR. JUSTICE COTHRAN: I concur in affirming the circuit decree for the reasons therein stated, and am of the opinion that the cases of Lemmon v. McElroy, 113 S.C. 537;101 S.E., 852, and Bartell v. Edwards, 113 S.C. 217,102 S.E., 210, which upon the point decided herein are out of line with the weight of authority in this state and elsewhere, should be distinctly overruled.

Concurrence Opinion

Mr. Justice Cothran :

I concur in affirming the circuit decree for the reasons therein stated, and am of the-opinion that the cases of Lemmon v. McElroy, 113 S. C., 537; 101 S. E., 852, and Bartell v. Edwards, 113 S. C., 217, 102 S. E., 210, which upon the point decided herein are out of line with the weight of authority in this state and elsewhere, should be distinctly overruled.