117 S.E. 363 | S.C. | 1923
Dissenting Opinion
I dissent. This case has been before, this Court before, and will be found reported in 118 S. C., at page 189; 110 S. E., 124.
This was an action for partition. The defendants set up title in themselves. The verdict was for the plaintiff and reads : “We find for the plaintiffs one-fourth undivided interest in dispute.” Judge Rice, who heard the case, signed a consent order after the Court adj ourned. The defendants were dissatisfied with the decree, and Judge, Rice made a subsequent order, changing the decree, on the ground that he was merely making a clerical,change. From this order the plaintiff appealed, and this Court held:
“There is no question that the two decrees were materially and substantially different.”
This Court reversed Judge Rice’s order. In its opinion this Court said that its judgment was “without ‘prejudice to the right of respondents to renew their motion in a Court or before a Judge having jurisdiction to entertain it.” There was no finding as to what Court or Judge had jurisdiction to entertain such a motion. The motion was renewed before Judge Shipp, who was holding Court in Lee- County, in which the case was was tried, and he granted the motion and made the order.
It will be observed that it is res adjudicata that the two decrees are “materially and substantially different.” I think that Judge Shipp had no jurisdiction to make a material and substantial alteration in a decree made by a former Judge, or even one made by himself at the former term of the Court. Roberts v. Drayton (S. C.), 113 S. E., 365.
The order that was materially changed was a consent decree, and, even .if it was not binding as a judgment, it was certainly binding as a contract.
Lead Opinion
April 30, 1923. The opinion of the Court was delivered by For the reasons assigned by his Honor, Judge Shipp, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE GARY and MESSRS. JUSTICES COTHRAN and MARION, Concur. *172
MR. JUSTICE FRASER: I dissent. This case has been before this Court before, and will be found reported in 118 S.C. at page 189;
This was an action for partition. The defendants set up title in themselves. The verdict was for the plaintiff and reads: "We find for the plaintiffs one-fourth undivided interest in dispute." Judge Rice, who heard the case, signed a consent order after the Court adjourned. The defendants were dissatisfied with the decree, and Judge Rice made a subsequent order, changing the decree, on the ground that he was merely making a clerical change. From this order the plaintiff appealed, and this Court held:
"There is no question that the two decrees were materially and substantially different."
This Court reversed Judge Rice's order. In its opinion this Court said that its judgment was 'without prejudice to the right of respondents to renew their motion in a Court or before a Judge having jurisdiction to entertain it." There was no finding as to what Court or Judge had jurisdiction to entertain such a motion. The motion was renewed before Judge Shipp, who was holding Court in Lee County, in which the case was was tried, and he granted the motion and made the order.
It will be observed that it is res adjudicata that the two decrees are "materially and substantially different." I think that Judge Shipp had no jurisdiction to make a material and substantial alteration in a decree made by a former Judge, or even one made by himself at the former term of the Court. Roberts v. Drayton (S.C.),
The order that was materially changed was a consent decree, and, even if it was not binding as a judgment, it was certainly binding as a contract. *173
Lead Opinion
The opinion of the Court was delivered by
Por the reasons assigned by his Honor, Judge Shipp, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
