13455 | S.C. | Jul 21, 1932
July 21, 1932. The opinion of the Court was delivered by The statement of the matters involved in this appeal, fairly stated by appellants' counsel, is as follows:
"This is an appeal from an order of Judge Rice signed December 3, 1931.
"(1) Overruling defendants' motion to strike out certain paragraphs of the complaint as (a) irrelevant; (b) stating conclusions of law and fact only; and (c) that testimony to sustain such allegations would be irrelevant.
"(2) Referring the case to the Master `to take the testimony and report the same to this Court.'
"It is the contention of the appellants that an examination of the complaint will show that it states a cause of action upon certain notes, executed by them to the respondent, for the recovery of money only and that under the Constitution they are entitled to a trial by jury on the issues raised by the pleadings; that the paragraphs sought to be stricken out were no part of the cause of action sued upon; and that *426 extraneous matters were inserted in the complaint in an effort to convert the action, properly one at law, into one in equity, for the purpose of depriving defendants of their constitutional right of a trial by jury."
On examination of the complaint and the answers of the defendants, we are of the opinion that the Circuit Judge was correct in his conclusions. Let his order be reported.
The order of reference to take the testimony does not necessarily deprive the appellants of a trial by jury hereafter. On the coming in of the master's report, submitting the testimony adduced before him, the Court may then, if it is deemed proper to do so, frame issues to be submitted to a jury. Sloan v. Burnett et al.,
The order appealed from is affirmed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.