10 S.C. 431 | S.C. | 1879
The opinion of the Court was delivered by
This was a proceeding originally instituted in the Court of Probate for Marion County by the appellant as a
The Court of Common Pleas is invested by the Constitution, Article IY, Section 16, with “jurisdiction in all matters of equity,” and no one will deny that the object of the action brought by Crane, Boylston & Co. was one of which the Court of Equity, at the time of the adoption of the Constitution of 1868, had cognizance. The fact that jurisdiction of such an action may also have been given to the Court of Probate does not oust the jurisdiction of the Court of Common Pleas under the principles established in the recent case of Walker vs. Russell, manuscript decision, filed 23d April, 1878.
Again, it is argued that the action brought by Crane, Boylston & Co. could not effect the purposes sought by the present proceeding:
1. Because the Court in Sumter could not order the sale of the. land in Marion by reason of the provisions of Section 146 of the Code. This has already been considered and disposed of.
2. Because under that action the executors could not be called upon to account for a trust fund in Marion. If fhe. Court of Common Pleas in Sumter had, as we have seen, the same jurisdiction as that originally possessed by the Court of Equity, we can see no force in this objection.
3. That the suit in Sumter was not, in fact, for the same purpose. The object of this proceeding was to obtain a judgment against the executors, and, if necessary, to obtain an order for the sale of the lands of the testator for the purpose of paying the claims set up by appellant against the estate of the testator; and as the object of the action in Sumter was to marshal the assets of the testator’s estate
The position taken by the appellant, that the order of the Court of Common Pleas in Sumter referring all the issues of law and fact to the Judge of Probate of Marion County after his petition was filed in the Court of Probate for Marion County gave that Court complete jurisdiction, cannot be sustained. This order simply constituted such Judge of Probate a Referee in the case, and in no Way interfered with the jurisdiction previously acquired by the Court of Common Pleas in Sumter. The issues were referred not to the Court of Probate but to the person who then held the office of Judge of that Court, just as it frequently happens that issues are referred to the Clerk of the Court of Common Pleas.
The judgment of the Circuit Court is affirmed.