11 S.C. 445 | S.C. | 1879
The opinion of the court was delivered by
The appeal is from a refusal on the part of the Circuit judge to grant a new trial. Facts, which are of importance, are not clearly set forth in the statement of the case, and it becomes necessary that the nature of the original proceedings, as elicited at the hearing of the appeal, be stated. The party represented to be the plaintiff claims to be a creditor of the estate represented by the defendant. A proceeding in the nature of a creditor’s bill, or of such character, it seems, had been instituted, and Benjamin Sloan, as administrator of Easley, came
The first question is whether, under such circumstances, such motion was regular. The case of Flinn & Hart v. Brown, 6 S. C. 209, is in some respects different from this, but is important. “ The subject matter of the [that] suit looking to the end it proposed, and the character of the relief which it claimed on behalf of the plaintiffs, constituted it ca case in chancery/ as distinguished from one at law, and its mode of trial must be in
“ Issues to the court of law are dirécted by this court (that of equity) for the purpose of informing the conscience of the Chancellors, and if this purpose be achieved we do not examine the
Neither the rules nor the reasons for them are changed by the alternation in the form of procedure, or by the powers of law and equity having been vested in one court.
In the case of Railroad Company v. Toomer, 9 Rich. Eq. 270, an issue of fact having been sent to the court of law, it is said that if an action “ had been ordered the appeal would have been to the law court of appeals from the trial had, otherwise when the order is of an issue or an issue in the nature of an action. In such cases the motion must be made on the return of the issue in the court from which it emanated, not by way of appeal, for another issue or a new trial, if that court is not satisfied with what has been done.” For a succinct statement of the practice, and the reasons for it, see, also, Adams’ Eq. pp. *377-8.
The importance of a ruling upon-this point is obvious, and the more so, when we call attention to the fact that under the constitution, the question whether the trial was at law or in equity involves the rights also of the parties on an appeal to this court. For, in a trial at law it is only for errors at law that the case can be brought before the court for correction, while in cases of chancery there is a general appellate jurisdiction. If, for instance,
The verdict, together with the judge’s notes of the evidence, with any exceptions to his rulings on questions of law, should have been sent over to the chancery side of the court and made a part of the original proceeding. It was, however, stated by the attorneys on both sides that judgment had been entered up on the verdict as if the trial had been in a separate action. The appellants urged that they appealed to stay the execution of said judgment, and the respondent, in a preliminary motion to strike the case from the docket, urged that the motive on the part of the appellants was to retard the execution of said judgment. The matter was thus forced upon the attention of the court, and while it is not before the court for adjudication, for the appeal is not on a motion to set aside the judgment, the court,' nevertheless, feels called upon to say that such practice is entirely erroneous, and that upon proper motion such judgment should be set aside. To frame an issue was never intended to be the means of giving a preference or advantage to any party in a proceeding arising on the chancery side of the court.
The appeal is dismissed.
Motion refused.
Appeal dismissed.