37 S.C. 181 | S.C. | 1892
The opinion of the court was delivered, by
This appeal from the order made by his. honor, Judge Hudson, at Darlington, in the Court of Common Pleas, on the 7th day of November, 1890, wherein he set aside the return of commissioners who had been appointed by the clerk of the Court of Common Pleas for Darlington County, to appraise and admeasure to the petitioner, as the widow of one W. H. Brown, deceased, a homestead exemption out of the land of her husband, the said W. H. Brown, in said, county, on her petition to said clerk therefor, is made upon three grounds, to wit: 1. Because his.honor erred in holding' that he had jurisdiction to hear and determine the right of. petitioner in the homestead claimed, and to set aside the appraisement or admeasurement, when it was submitted that the-right to the exemption had been and was adjudicated by the-clerk of court, who ordered the homestead appraised, admeasured, and set off. 2. Because his honor, the-presiding judge, erred in holding that petitioner was not entitled to a homestead exemption in the lands of W. H. Brown, the husband of M. A. Brown, the petitioner, for the reason that she and her children have a separate estate in their own right. S. Because his honor erred in not confirming th.e return of the appraisers,.
While, therefore, the Circuit Court is thus denied original jurisdiction in these matters, yet by the very section of the General Statutes which provides this exclusive mode (section 2002) it is required, in order to complete the settlement of this right, even where no complaint is made by a creditor or other person interested, that the return of the commissioners shall be confirmed by the Circuit Court at its next ensuing term thereafter. And, further, that “if exceptions to such appraisement and return be filed by any person interested therein within the said period of thirty days after filing the return of said appraiser's, the Circuit Court, upon good cause being shown, may order a reappraisement and assignment by other appraisers to be appointed by the court.” T>oes this power confided to the Circuit Court include the additional power of passing upon the question whether, under the Constitution and statutes of this
This question does not appear to have been made in the case of Ex parte Bay, 20 S. 0., 246, although the petition in that case was addressed to the master, and the representative of creditors filed objections that ivere overruled by the master, and commissioners afterwards appointed by him. But, in addition, this court, in the case of Ex parte Ellis, 20 S. C., 346, very plainly intimates that the time for creditors to file their exceptions is within the thirty days after the return has been made by the commissioners to the clerk of court. “All that is required is that the exceptions shall be filed within thirty days after the filing of the return of the appraisers originally appointed. Where the appellant made his application to have his homestead assigned to him, he knew, or ought to have known, as the act is very plain, that he had inaugurated a proceeding which could not become final or effectual until his creditors had had an opportunity to file exceptions, and that he could not take the final step necessary to perfect his right, for the protection of which such proceedings had been inaugurated by him, until after the expiration of the time allowed for filing exceptions, or until the exceptions, if filed, had been disposed of.” In this last case, it must be admitted that the exceptions related to the appointment of new commissioners. In the section 2002, no provision is made for a creditor or other person interested, either to make or to be heard on exceptions before the master or clerk. But, looking at all these matters, we are not prepared to say that the clerk or master must judicially pass upon the right to homestead. It is opposed to reason to say the clerk must act judicially with only one party to a controversy before him. Such a eonstruc
Be this as it may, however, and grant, for the sake of the argument, that the master or clerk of court does pass judicially upon the right of homestead before he issues the writ or process to the commissioners, why cannot the legislature, in the broad discretion of section 32, of article II., of the Constitution, as amended, provide the thirty days for creditors or others to present their objections, of every class, to the laying off the homestead? It was in their power, and we think they have done so. Where would the power to investigate the right of a party to claim a homestead be lodged? If in the master or clerk, and jurisdiction is denied the Circuit Court to examine the correctness of the master or clerk in adjudging such right, or its denial, how could the Supreme Court obtain jurisdiction? For it is well recognized law that upon appeals heard by the last mentioned court, on the law side, it is confined to questions of law ruled upon by the Circuit Court. It seems to us that when the legislature prescribed that in canvassing the return, the Circuit Court should, for good cause shown, set aside the appraisement and appoint new commissioners, it only meant that such should be the line of duty of the Circuit Court in that particular, and did not mean to deny the higher duty of ascertaining the existence of the right to homestead in the petitioner.
It is the judgment of this court that the judgment of the Circuit Court appealed from be reversed.