Hornesby v. Burdell

9 S.C. 303 | S.C. | 1877

The opinion of the Court was delivered by

McIver, A. J.

This action having been commenced prior to the filing of the decisions of this Court in the Homestead Building and Loan Association vs. Enslow, heard at November Term, 1875, and Rosenberg vs. Levi, heard at April Term, 1876, was doubtless based upon the idea that the head of a family could not, since the adoption of the Constitution of 1868, give a mortgage of real estate which would avail against the right of homestead secured by the Constitution, for this alone can account for the addition of the wife and children as parties plaintiff. These cases having shown the fallacy of such an idea, the wife and children are not only unnecessary but improper parties, and the case may, therefore, be treated as if James Hornesby was the sole plaintiff.

The facts of the case must be gathered alone from the statements contained in the “ case” as presented here, and any additional statements incorporated in the brief submitted by the counsel for respondents must be wholly disregarded as ex parte and not properly before us.

If counsel are dissatisfied with the statements of fact contained in the “ease,” as presented by the appellant, and desire to correct any misstatement of facts therein, or add additional facts, the proper mode of so doing is clearly pointed out in the rules of the Court; and if parties fail to adopt the mode prescribed, they cannot expect the Court to adopt or act upon any ex parte statements made in the argument.

It is very obvious that the issues in this action were improperly heard at chambers, and, therefore, without entering into a consideration of any of the various questions raised, it is sufficient to say that the Circuit Judge had no jurisdiction to determine these issues at chambers; certainly not upon affidavits, and in face of the objection made by the counsel for the appellants, and therefore the judgment determining these issues in favor of the plaintiffs must be set aside. It appears, however, that one of the objects of the action was to obtain an injunction to restrain the defendants from proceeding to oust the plaintiffs from the possession of a certain tract of land in Kershaw County under a warrant issued by the two Trial Justices under a proceeding had before them to eject the plaintiff, James Hornesby, as tenant of the defendant, Mary Burdell, holding over under a lease which had expired. A temporary injunction was granted, without notice to the defendants, by the Judge of the Sixth Circuit, a circuit which does not embrace the County of Kershaw, where the action was instituted, and the record does not show that this application was made to the Judge of the Sixth Circuit because of the absence or inability to act of the Judge of the Fifth Circuit, to which the County of Kershaw is attached. This order of temporary injunction also required the defendauts to show cause before the Judge of the Sixth Circuit, on a day fixed, at Columbia, which is out of the limits of the Sixth Circuit, why such “injunction should not be made perpetual and the prayer of the complaint granted.”

On the day appointed by this order the parties appeared, by their counsel, before the Judge of the Sixth Circuit, at Columbia, when the counsel for defendants “excepted to the hearing of the case at chambers,” which exception was overruled, and the Judge proceeded to hear the case upon affidavits and argument of counsel, and at a subsequent day he rendered judgment for the plaintiffs upon all the issues in the action, amongst other things making the injunction perpetual, and upon this error is assigned.

While it is undoubtedly true that a Circuit Judge may, in a case of which he has jurisdiction, upon a proper showing, grant an interlocutory or temporary injunction, at chambers, to continue until the final hearing of the case on its merits, it is very clear that a perpetual injunction cannot be granted until the case is fully heard upon its merits and the issues raised determined by the tribunal having authority to make such determination. — High on Inj., § 3.

Now if, as we have seen, the issues in this action were not properly triable by the Judge at chambers against the consent of one of the parties, the judgment granting a perpetual injunction was erroneous and must be set aside.

As to the interlocutory or temporary injunction, it may well be doubted whether the action of the Circuit Judge in granting it without a showing on the record of the absence or inability of the Judge of the Fifth Circuit could be sustained, upon the principle that all facts necessary to give jurisdiction should appear upon the record. But taking it for granted, as we are disposed in justice to the Circuit Judge to do, that he would not have assumed jurisdiction unless it had been made to appear satisfactorily to him that the Judge of the Fifth Circuit was absent, the question still remains whether the injunction was properly granted.

It will be observed that this was an application to enjoin the execution of the judgment of a Court of Trial Justices and freeholders, a special tribunal, erected by statute for a special purpose, rendered in a case of which such tribunal must have had jurisdiction; for if it did not, then the remedy was by prohibition. — Leman vs. Goutly, 3 T. R., 4; Adams vs. Rush, 2 Stra., 1133; Wainwright vs. Bagshaw, 2 Stra., 914; McDonald vs. Bonner vs. Elfe, 1 N. and McC., 501; State vs. Wakely, 2 N. and McC., 410; Leonard’s case, 3 Rich., 113. And as this remedy seems actually to have been resorted to and failed, there is additional reason for assuming that the Court had jurisdiction. We have, then, an application to restrain by injunction the execution of the judgment of a special tribunal created by statute for the purpose of affording a cheap and expeditious mode of ejecting a tenant who holds over after the expiration of his lease in a case of which it had jurisdiction, and the question is whether injunction is the proper remedy.

In High on Injunction, Section 31, it is said: “Where a positive statutory remedy exists for the redress of particular grievances, a Court of equity will not interfere by injunction and assume jurisdiction of the questions involved, nor will it enjoin proceedings under such statutory remedy, since such interference would place the judicial above the legislative power of the government.” In support of this doctrine he cites the ease of Brown’s appeal, (66 Penn. Stat., 155,) which was very much such a case as the one now before the Court, and fully supports the doctrine laid down in the text. The authorities in this State demonstrate that the proper remedy in such a case is by writ of certiorari. — State vs. Senft & Prioleau, 2 Hill, 369; Cooper vs. Stoeker, 9 Rich., 292; Follin & Forgeaud vs. Coogan, 12 Rich., 44. If, therefore, as we have seen, injunction is not the proper remedy to correct the errors or relieve a party from the effects of an alleged erroneous judgment of the Court of Trial Justices and freeholders, it should not have been granted. As Butler, J., in Leonard’s case, supra, remarks: “There is a wide difference between the different modes of bringing up cases for review and revision from inferior tribunals to the Courts of superior jurisdiction, and they ought not to be confounded from a desire to do justice in one form when it should be applied for in another.”

The judgment of the Circuit Judge, together with the orders of injunction, are, therefore, set aside, and the case is remanded to the Court of Common. Pleas for Kershaw County for trial.

Motion granted.

Willard, C. J., and Haskett, A. J., concurred.