June 2, 1925.
The opinion of the Court was delivered by
This Court is entirely satisfied with the reasoning and conclusions of the Circuit Judge (Judge Bonham) upon the merits of this controversy. The only question remaining is whether there was error in the order of Special Judge Lanham in referring the case to the Special Referee to take the testimony, over the objection of the defendants.
It has been decided by the Court in the case ofNewell v. Bankenship, 125 S.E., 420; 130 S.C. 131, that, even in an equitable action the Court has no power to compulsorily order a reference, except under the circumstances detailed in Section 593, Code of Civil Procedure, 1922 (citing Ferguson v. Harrison, 13 S.E., 332; 34 S.C. 169), none of which exist in the case at bar. The alternative is for the Circuit Judge, sitting as a chancellor in an equity case, to take the testimony and decide the case. If the appellants had opposed the reference upon this ground, and had followed up the objection with appropriate exception, their position would have been sustained. But their objection was based upon the refusal of the Circuit Judge to frame issues for the jury, in compliance with the motion which had been duly noticed. This was a matter within his discretion as is plainly disclosed in rule 23 of the Circuit Court rules.
The judgment of the Court is that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES WATTS and MARION concur.