Timmons v. Turner, 55 S.C. 490

Timmons v. Turner

55 S.C. 490 | S.C. | 1899

The opinion of the Court was delivered by

Mr. Justice Pope.

This is an appeal from the order of Judge Buchanan, at September term, 1898, of Court of Common Pleas for Florence County, overruling a demurrer by the defendants to the plaintiff’s complaint on the two grounds that the Court did not have jurisdiction, and that the complaint failed to state facts sufficient to constitute a cause of action. The complaint with its exhibits will be reported. From the complaint it seems that the plaintiff brought a former action in claim and delivery as the holder of the mortgage executed by the defendant’s intestate, R. W. Turner, to the plaintiff, to secure a debt of $150.12, and that when such action came on for trial before Judge Benet and a jury, in September, 1896, on the ground that such mortgage debt was not due when the action was commenced, and that the action was premature, under the charge of Judge Benet to that effect, the jury found a verdict in favor of the defendant, R. W. Turner; that the cause of action of plaintiff’s present action is to recover the sum of $150.12, with interest thereon from 28th February, 1894, which sum was due for advances made by the plaintiff to the said R. W. Turner in his lifetime, and for the sum of $60.47 paid to the firm of' G. A. Norwood & Co., at the said R. W. Turner’s request, for the assignment to her of the bill of sale executed by R. W. Turner to said G. A. Norwood & Co. in 1893, for one mule, one ox, two cows and calves, and six hogs, which were at that date in the possession of the said R. W. Turner, and that said 'bill of sale is now held and owned by the plaintiff. That R: W. Turner departed this life after the present action was commenced, and that the defendant, D. C. Turner, has been duly appointed the administrator of his personal estate.

*497i *496The six grounds of appeal presented to the order of Judge Buchanan raise but two questions: first, did the Court have jurisdiction to try this case? and, second, did the complaint state facts sufficient to constitute a cause of action? *497Let the grounds of appeal be reported. In the first, second and fourth grounds of appeal the appellants use language from which one would infer that they meant to assert that a Court of Law and a Court of Equity still exist as separate Courts, but such is not the case; the same Court, the Court of Common Pleas, now exercises, under the Constitution of the State, both jurisdictions. It is quite true that the principles of equity still subsist in all their pristine splendors, and are enforced in the Court of Common Pleas, and it is also true that the common law, in all of its rugged strength, still leads to the exercise of the right of a trial by jury, but one Court now does for both. The Circuit Judge gave no reason for his conclusion that he had jurisdiction to try the case, but no doubt he was able to see no force in the suggestion of a want of jurisdiction in the Court of Common Pleas to try the case now at bar, because, as suggested by the appellants, it would be a Court of Equity upsetting the judgment of a Court of Law. The complaint does no't suggest such a course; it makes the jurisdiction of the Court of Common Pleas to try the cause, to depend upon the allegations that plaintiff has never had before any Court the cause of action now presented. The Circuit Judge would have admitted, if he had desired that a different conception existed touching his assertion of full jurisdiction in the Court over which he presided to try the present action, that such jurisdiction did not arise from the Court of Common Pleas, in the exercise of its equity powers, 'having the right to either control or supervise proceedings or actions which legitimately belonged for trial to- the common law powers exercised by the Court of Common Pleas- — but, on the contrary, that the present was a new action, with no connection with any previous action. The exceptors can gain nothing from their grounds of appeal as to the jurisdiction of the Circuit Court.

*4982 *497We will now dispose of the questions suggested by the grounds of appeal relating to the want .of facts in the complaint sufficient to constitute a case of action. When we *498remember that in the case of a demurrer all the allegations of fact, which are material, are, for the purposes of the demurrer, deemed to be admitted by the person who demurs, we are made to realize that no matter how strong the defense not included in the demurrer may be to plaintiff’s cause of action, they are, for the time being, lost to- the demurrants. Their demurrer must stand or fall upon the allegations of fact in the complaint. Now, when reduced to its final analysis, what do we find these allegations of fact in the complaint to be? Simply this, that the plaintiff having a cause of action against the defendant, Turner’s, intestate for claim and delivery of certain personal property under a mortgage of said personal property to secure a debt of $150.12, due to the plaintiff, brought an action to enforce the said cause of action, and because the mortgage had not its condition broken, the Circuit Judge, Judge Benet, instructed the jury that the plaintiff could not recover, and the jury accordingly returned a verdict for the defendant. Such are the allegations of the present complaint, and, as before stated, the defendants, for the purposes of their demurrer, admit these facts. When we examine the present complaint, as to its cause of action, we find that the plaintiff does not seek a retrial of the issue as to a claim and delivery arising from a chattel mortgage, but she seeks a recovery of a debt for supplies furnished to the said R. W. Turner, for which she gave an agricultural lien, and for a debt which the plaintiff holds against the defendant’s intestate by reason of the bill of sale executed by the defendant’s intestate to G. A. Norwood & Co. and now held by the plaintiff. This Court has repeatedly held that such an action can be maintained. Wagener & Co. v. Kirven, 52 S. C., 34; also, Stoddard & Co. v. McIlwaine, 9 Rich., 451; Sense v. Dobson, 34 S. C., 345. It would be a sad day for the cause of justice, if an honest debt could be swept out of existence, so far as the right to sue for the same is concerned, simply because an action had been prematurely brought on a mortgage given to secure it. In the case cited from 9 Rich., *499supra,' the plaintiffs had been cast in their suits on three notes given for a debt, simply because they were not able to prove at the trial that the person who acted as agent of the defendant, in signing the defendant's name to such notes, was really defendant’s agent, with power to sign the notes in question. So they brought suit on the account of goods sold and delivered; when the defendant pleaded res judicata as an estoppel, the Court unanimously held that the first suit was no estoppel. It is useless to multiply words on this subject, these exceptions must be overruled. But again, we say our judgment merely extends to the demurrer and not to any defenses the defendants may by answer submit.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.