52 S.C. 461 | S.C. | 1898
The opinion of the Court was delivered by
The plaintiff brought this action to recover possession of a tract of land, containing thirty-five acres. The defendant admitted that the plaintiff had ■ title to twenty-one acres thereof, but denied her right to the remainder of said tract, and set up an equitable defense. The plaintiff’s attorneys had the clerk of the court to docket the case on calendar one. The defendant’s attorneys thereafter gave notice that they would move the Court to docket the case on calendar two, for the purpose of having the equitable defense tried by the Court in the exercise of its chancery powers. The motion was granted, whereupon plaintiff’s attorneys gave notice of appeal from said order, and stated that the case would not be tried during the term.
We thus see that, under the old practice, if both the legal and equitable issues had been pending, the equitable issue would necessarily have had to be decided before the jury would have been allowed to pass upon the legal issue. It was, on the other hand, the practice, before the adoption of the Code, when a suit was brought in the Court of Equity, and the question of title arose, either to order an action to be instituted in the Court of law, or to frame an issue as to title to be decided by that Court, which had to be determined before the equitable issues were disposed of. Those issues were first tried, which rendered unnecessary all further proceedings in the case. Since the adoption of the Code, it is left to the discreción of the Judge whether the legal or equitable issues shall first be tried. Code, section 279. In Pomeroy’s Code Remedies, section 86, it is said: “The equitable issues may be tried first and the legal issues afterwards, or the order may be reversed, as the nature of the case and the relations of the issues seem to require.”
In this case, there was no abuse of discretion on the part of the presiding Judge, for if he had allowed the legal issues
It is the judgment of this Court, that the appeal be dismissed.