46 S.C. 337 | S.C. | 1896
The opinion of the court was delivered by
At the hearing of this case on the 2d of January, 1896, a question as to the jurisdiction of the Supreme Court as then constituted to hear and determine this case, was raised. This being a question of the gravest character, involving the powers of one of the co-ordinate departments, the court requested the
From this review of the several provisions of the present Constitution, which are supposed to affect the question of jurisdiction presented, -we cannot entertain a doubt that the Supreme Court, as constituted at the time this case was heard, had full and complete jurisdiction to hear and determine the same. No one, we presume, could entertain a doubt that, but for the provisions of the present Constitution, this court, as then constituted, would have had full jurisdiction of the cause under the laws previously in force; and the framers of the Constitution, with that wise provision which might well be expected from such a body of men, while providing, in the third subdivision of section 11 of article XVII., that all laws inconsistent with the present Constitution should cease upon its adoption, expressly excepted all such laws as require legislation to enforce them until such legislation is had. Now, so far as this question is concerned, the only provision of the laws which were formerly in force, inconsistent with the provisions of the present Constitution, is that, under the laws previously in force, the Supreme Court, consisting of a Chief Justice and only two Associate Justices, or any two of them, had jurisdiction of any cause otherwise properly before it, while under sections 2 and 3 of article V., of the present Constitution, an additional Associate Justice is provided for; so that the Supreme Court shall consist of a Chief Justice and three Associate Justices, any three of whom shall constitute a quorum for the transaction of business. But this provision necessarily could not go into practical effect until the third Associate Justice was elected, and the General Assembly was expressly required, at its next session, to elect the third Associate Justice. This provision of the present Constitution, therefore, not only contemplated but necessarily required legislation to enforce it; and, therefore, under the express
Having thus disposed of the preliminary question of jurisdiction, we will now proceed to consider the case on its merits. On the 19th of Januaty, 1895, the defendants, Taber & Willard, executed a deed of assignment to their codefendant, Murray, for the benefit of their creditors- — -co-partnership as well as individual, as it is claimed- — -and the defendant, Legare, was subsequently appointed agent of the creditors. The plaintiffs having obtained judgment against Taber & Willard on a copartnership debt, and against Willard on his individual debt, on the 8th of February, 1895, and the executions issued to enforce said judgments having been returned wholly unsatisfied, this action was commenced on the 16th of March, 1895, for the following purposes: (1) To have the said deed of assignment set aside as void and of no effect, (2) to restrain and enjoin the defendants, Murray and Legare, from proceeding further under said deed; (3) for the appointment of a receiver of the property of the copartnership of Taber & Willard, and also that of the individual members of said firm, with authority to sell and dispose of the same, and apply the proceeds of such sale to the payment of the aforesaid judgments, and that the balance remaining after the payment of the costs and expenses of these proceedings be applied in such manner among the creditors of the said defendants as may be provided by law; (4) for such other relief as the nature of the case may require. At the time of the service of the summons and complaint, the defendants were also served with an order, signed by his honor, Judge Watts, bearing date 15th of March, 1895, enjoining the defendants, Murray and Legare, from proceeding further under said deed of assignment until the further order of the court, requiring the defendants to show cause before the said judge, on the 25th of March, 1895, why such restraining order should not be continued until the final hearing of the cause, and also why a receiver should not be appointed as
The judgment of this court is, that so much of the judgment of the Circuit Court as provides for the appointment of a receiver be reversed, and that, in all other respects, the judgment of the Circuit Court be affirmed.