33 S.C. 442 | S.C. | 1890
The opinion of the court was delivered by
Inasmuch as the question presented by this appeal does not involve any of the questions raised by the pleadings, but only involves the validity of a preliminary order, it will not be necessary to make so full a statement of the facts as would otherwise be proper. We will therefore confine ourselves to a statement of so much as may be necessary for a proper understanding of the question raised by this appeal.
The proceeding was 'originally commenced in the Court of Probate for Colleton County, by petition filed by Georgiana White, asking that letters of administration on the personal estate of Thomas M. Peeples, previously granted to one Roland W. Peeples, be revoked, and administration committed to petitioner. This demand was based upon the following allegations substantially : that the said Thomas M. Peeples died intestate, leaving
These allegations being denied by said Roland W. Peeples, the case was heard by the judge of probate, who found, as matter of fact, that the petitioner was duly notified of the application of Roland W. Peeples for letters of administration, and petitioner not only acquiesced in but approved of such application ; that Roland W. Peeples was not guilty of the slightest fraud on the court in obtaining said letters; that the intestate was married to his first wife, the mother of the petitioner, but there was no evidence whatsoever where, or in what State, such marriage was celebrated ; that the fruit of this marriage was two children, the' petitioner and one son, John Peeples; that about the year 1854 the intestate removed to the State of Florida and became domiciled there; that in the year 1857 the said Thomas M. Peeples obtained a divorce in the Circuit Court of Florida from his wife, who at that time resided in this State; that after said divorce was obtained Thomas M. Peeples married in the State of Florida one Sarah Ann Caller, and that the said Roland W. Peeples is the fruit of that marriage; that after the birth of said Roland, to wit, in the year 1860, the said Thomas M. Peeples returned to this State and continued to live here up to the time of his death.
Upon these facts the judge of probate found, as matter of law, that there was no ground for revoking the letters of administration previously granted to Roland W. Peeples; that, under the facts before him, Roland W. Peeples is the legitimate son of Thos. M. Peeples, “for, in the first place, there is no evidence to show that the first marriage of Thos. M. Peeples was celebrated in this State, and hence the dieta- of the South Carolina judges,
After the appeal was perfected, the petitioner gave notice that she would move his honor, Judge Wallace, at chambers in Beaufort, on a day named, “for an order to send the cause back to the probate judge, with leave to take testimony as to when and in what State the first marriage of Thomas M. Peeples was solemnized.” Pursuant to this notice the motion was heard by Judge Wallace at chambers, but he reserved his decision, and upon the call of the case in the Circuit Court at Colleton, further argument was heard by the same judge, who presided at that court, and again reserving his decision, finally made the following order: “Upon the coming up of this cause for hearing, it being an appeal from the judge of probate’s decree to this court, it is moved by Charles Boyle, attorney for petitioner, on theproceedings before the probate judge, filed in this court on appeal, that the said cause be sent back to the probate judge for further hearing, with leave to petitioner to take testimony as to what State or place the marriage of Thomas M. Peeples with his wife Caroline was solemnized in, and with leave also to the respondent to take such testimony on this point as he may see fit. This order is granted upon the authority of Houser ads. Twitty, 7 S. C , 153, which seems to decide the very question in issue here.” From this order Roland W. Peeples appeals upon the several grounds set out in the record.
There is some controversy between the parties as to whether
The question, then, is whether the Circuit Court had jurisdiction to grant the order in question. This case unquestionably was one involving solely a matter of administration, and was therefore under the express terms of the Constitution (art. IV., sec. 20), within the jurisdiction originally of the Court of Probate; but as the 15th section of article IV. of the Constitution confers “appellate jurisdiction in all such cases as may be provided by law” upon the Court of Common Pleas, and as section 55 of the Code provides that “the Circuit Court shall have appellate jurisdiction of all matters originally within the jurisdiction of the Probate Court,” it is quite clear that the Court of Common Pleas had "appellate jurisdiction in this case, and appellate jurisdiction only ; for the Code, after providing the manner in which an appeal may be taken and perfected from a decree of the Court of Probate, expressly declares, in section 60, that when the certified copy of the proceedings in the Court of Probate has been filed in the Circuit Court, “such court shall proceed to the trial and determination of the question, according to the rules of law; and if there shall be any question of fact or title to land to be decided, issue may be joined thereon under the direction of the court, and a trial thereof had by jury.”
In Stewart v. Blease (4 S. C., 44) this provision of the Code is construed to mean that where a case originally within the jurisdiction of the Court of Probate, has been heard there, and carried thence by appeal to the Circuit Court, the hearing in the latter court is strictly on appeal, except where an issue of fact or of title to land is to be decided, either party may apply to the Circuit Court for an order that such issue may be tried by a
It is clear, therefore, that when this case was carried by appeal from the decree of the Court of Probate to the Circuit Court, the latter could only exercise appellate jurisdiction therein-, there having been no application made to the Circuit Court for the trial of any issue by a jury. It is equally clear that, in granting the order now under consideration, the court did not exercise its appellate jurisdiction, which, according to Stewart v. Blease, supra, is limited “to a review of, and judgment on, the evidence taken below,” and must be so from the nature of an appeal, which necessarily involves the idea of a review of the action of the tribunal from which the appeal is taken, for the purpose of ascertaining whether there is any error in such action, and excludes the idea of any original action, or the introduction of any new evidence, by the appellate tribunal. Accordingly it was held in Stark v. Hopson (22 S. C., 42), that where the Circuit Judge, while hearing an appeal from the Court of Probate, took into consideration and acted upon certain testimony, which,
Now, the order here in question does not purport to bo, and is not in fact, based upon any error discovered in the decree or proceedings of the Court of Probate, after a review thereof by the Circuit Court, for it is stated in the “agreed Case” that “no testimony was read, and the motion was the original chambers motion heard in open court,” and it is manifest from the terms of the order that its sole object was to enable the petitioner to supply certain testimony which the record, upon which alone the Circuit Court had any authority to act, did not contain, and it was based solely upon the authority of Twitty v. Houser (7 S. C., 153), which will be presently considered. There was no showing that the testimony sought to be supplied had, through inadvertence, accident, or other cause, been omitted from the certified copy of the proceedings in the Court of Probate, filed in the Circuit Court for the purposes of the appeal, and, on the contrary, it appeared from the decree of the judge of probate, which was a part of such record, that “there was no evidence whatsoever where or in what State said first marriage was celebrated.” It is manifest that the sole purpose of the order, just as in Twitty v. Houser, was to enable the petitioner to furnish certain testimony which she had omitted to offer at the original hearing. For an appellate tribunal to grant such an order is so manifestly inconsistent with every proper conception of the office of an appeal that it cannot be sustained. Besides being entirely outside of the jurisdiction with which such a tribunal is invested, it would tend not only to encourage loose and careless practice, very detrimental to the orderly conduct of the business of the courts, but would efface the lines of distinction between original and appellate jurisdiction.
It is urged, however, by the counsel for respondent herein that the order appealed from may be regarded simply as an order for
The several cases cited by counsel for respondent herein, in which appellate tribunals have sent cases back for a new trial or for further hearing as to particular issues, are not in point; for in those cases the appellate tribunal first heard and considered the appeal, and not being satisfied of the correctness of the conclusion reached below, either as to the whole case, or as to some material issue involved therein, ordered a new trial or a further hearing: but Ave think it would be very difficult, if not impossible, to find any case, unless it be that of Twitty v. Houser, in which an appellate tribunal has undertaken to order a new trial or a further hearing, without first hearing and considering the appeal. This Avas not done in the present case, and Judge Wallace based his conclusion, evidently with some hesitation, solely upon the authority of the case of Twitty v. Houser, supra.
It only remains, then, to consider Avhether that case is in point, and if so, Avhether it should be permitted to stand as an authority, a re-argument having been ordered to afford counsel an opportunity to be heard on the last mentioned question. While there are some few points of difference between the case of Twitty v.
The respondent has made the point, in his argument here, that the order of Judge Wallace is not appealable, but inasmuch as we have seen that the effect of such order was to deny to the appellant a substantial legal right, the position cannot be sustained, Blakely v. Frazier, 11 S. C., 122.
The judgment of this court is, that the order appealed from be reversed, and that the case be remanded to the Circuit Court for such further proceedings as may be necessary.