Latham v. Harby, 50 S.C. 428

Latham v. Harby

50 S.C. 428 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Justice Gary.

The view which the Court takes of this case will render it necessary to set out in the report thereof, the complaint, the answer (except the third defense, which was withdrawn without objection), the report of the master (except the items making up the result in the statement of receipts and expenditures of account), the exceptions to the said report, the decree of his Honor, the presiding Judge, and the exceptions to the said decree.

*443The following statement appears in the case: “This case was pressed on for trial by the plaintiff’s attorneys on the equity side of said Court, after the juries were discharged for the term; and the defendant’s attorneys moved to dismiss the complaint on the grounds that neither the complaint nor the testimony showed that the plaintiff was entitled to any equitable relief. Immediately after argument, his Honor announced the judgment orally from the bench, and directed the defendant’s attorneys to write out a decree in accordance therewith. No motion was made to retain the case for the determination of any issues upon the law side of said Court, nor was any motion made for an amendment.”

The decree of his Honor, the presiding Judge, must be construed with reference to the question before the Court when the judgment was orally announced by him. The motion then before the Court was to dismiss the complaint on the grounds that neither the complaint nor the testimony showed that the plaintiff was entitled to any equitable relief. The motion was, in effect, to dismiss the complaint on the ground that neither the complaint alleged nor did the testimony show such facts as were sufficient to call forth the exercise, by the Court, of its equitable jurisdiction. The question presented for the consideration of the Court was, therefore, one of jurisdiction, otherwise there was no necessity to make the motion. The presiding Judge was right in sustaining the objection that there was nothing in the case to invoke the equitable jurisdiction of the Court. There was no complexity in the accounts, and, even if the presiding Judge had found, as a fact, that the plaintiff was entitled to one-half of the interest on credit sales of stock, still the amount for which he would have been entitled to recover judgment could easily have been ascertained without a resort to a court of equity, as there was no dispute in regard to the dates and amounts of the credit sales of stock.

It is contended that the equitable jurisdiction of the Court should be exercised for the purpose of making partition of the S. W. Connerly land, and that, as the Court *444had acquired jurisdiction for one purpose, it would dispose of all other questions, so as to prevent a multiplicity of suits. In the statement of the account prepared by the plaintiff, this land is charged to the defendant at $105; and in the case we find the following: “Inasmuch as Mr. Harby is charged with S. W. Connerly land $105, it is hereby admitted by plaintiff’s attorney, that should Mr. Harby not see fit to retain the land at this price, this item should come out of this account and be carried to the assets account.” It seems Mr. Harby made no objection to this item, therefore, there was no necessity to resort to equity touching the partition of said land.

As the findings of fact by the presiding Judge were in response to the question of jurisdiction, and as the question of jurisdiction could have been determined without the findings of fact which he made, such findings must be without prejudice to the rights of the plaintiff, in case he seeks relief on the law side of the Court. If the plaintiff can sustain the allegations of his complaint making out a cause of action on the law side of the Court, he will be entitled to recover judgment against the defendant. It was, therefore, error for his Honor to have dismissed the complaint. Bank v. Dowling, 45 S. C., 677. Under this view of the case, it is not necessary to consider the exceptions in detail.

It is the judgment of this Court, that the judgment of the Circuit Court be modified, and the case remanded to that Court for the purposes herein mentioned.