40 S.C. 486 | S.C. | 1894
The opinion of the court was delivered by
The plaintiff in his complaint alleges that he has title to a tract of land of 100 acres, situate in Marion County, but that defendant unlawfully withholds possession from him. The defendant admits his possession of the land, but denies plaintiff’s title. The cause came on for trial at the April Term, 1893, of the Court of Common Pleas for Marion, before Special Judge Gary and a jury. After plaintiff had closed his testimony, the defendant moved for a non-suit on the following grounds, to wit: 1. Because there is no judgment — no judgment has been introduced. 2. Because if there
In order to have a clear view of the issues raised by this appeal, a statement of the testimony may be necessary. The summary process docket of the Court of Common Pleas for Marion County for February Term, 1869, shows the case under which sale was made as No. 167, D. W. McLaurin vs. J. A. and D. J. Kelly; cause of action notes; entry made on such docket by the presiding judge, Judge Rutland, “Decree by default.” The execution issued in said case by the clerk of such court, dated 13th February, 1869, recited that “Upon the hearing thereof it appeared to the said court that the defendants were indebted to the said plaintiff in the sum of thirty-nine 79-100 dollars, with interest thereon from the 13th day of February, 1869.” There was a levy endorsed on this execution April 1st, 1869, but no sale was made thereunder. A summons was served in this cause, 31st January, 1879, requiring the defendants, J. A. Kelly and D. J. Kelly, to show cause in the Court of Common Pleas why the execution should not be renewed. An order was passed by the court, consented to by these defendants, reciting that the summons in the case named showed that the judgment recovered against the defendants for $39.79, with interest thereon from the 22d February, 1869, and costs of the original action, was still due and unpaid, and ordered that the plaintiff have leave to issue a new execution for said $39.79, with interest from 22d of February, 1869, and costs of
But by section 26 of the Code, as amended by the act of 1887 (18 Stab, 587), it is provided: “Whenever in this chapter provision is made for Courts of General Sessions only, the judge presiding shall at the conclusion of any such Court of General Sessions open the Court of Common Pleas without juries, and give judgments by default on Calendar 3, hear and determine equity causes, and transact all other business of a regular term of a Court of Common Pleas except trials by jury.” We cannot agree that this summer or June term of court is a regular term of the Court of Common Pleas. It seems to us that when the legislature of the State fixed that there should be only tioo terms of the Court of Common Pleas, that such terms were only the regular terms of such court. The fact that the Circuit Judge is not allowed to hear trials by jury after the completion
We do not care to'pass upon the second ground of appeal, because we fear it imputes error to the Circuit Judge in not having passed upon the sufficiency of the testimony. The jury must do this under the instructions of the court, of course; and as there must be a new trial, we do not feel justified in doing more than to correct the error of the Circuit Judge when he granted the motion for a non-suit.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and the cause remanded for the purpose of a new trial.