Verner v. Perry

45 S.C. 262 | S.C. | 1895

The opinion of the Court was delivered by

Mr. Justice Pope.

This action was begun by the plaintiffs against the defendants on the equity side of the Court of Common Pleas for Greenville County, in this State, and came on for trial before his Honor, Judge Watts, at the fall term, 1894, of said Court. The decree sustained the master’s report, and was against the defendant, W. H. Perry; whereupon he appealed to this Court upon five grounds. He has abandoned three, leaving the following to be heard and considered by this Court:

IV. That the Circuit Judge erred in ignoring the motion of defendant, W. H. Perry, for leave to file an additional exception, making specifically the point that the judgment held by the defendant, W. H. Perry, has priority over the mortgage held by the defendant, Joseph P. Latimer.

V. That the Circuit Judge erred in not holding that thé judgment held by the defendant, W. H. Perry, having been duly entered before the mortgage held by the defendant*, Joseph P. Latimer, was recorded, and said mortgage not having been recorded within forty days after the execution; said judgment should have priority over said mortgage.

1 Let me consider the fourth exception. It seems that before Special Master John R. Bellinger, Esq., to whom all the issues of law and fact had been submitted, the defendant, J. H. Latimer, introduced and proved his original mortgage; with all the entries pertaining to its registration endorsed thereon, and at the same time the defendant, W. H. Perry; introduced his judgment. Mr. Perry contended that his judgment had priority over this mortgage. The special master in his report decided in favor of the mortgage of Iyatimer. No question was made before the special master touching the registration of the mortgage in question. To the report of the special master Mr. Perry filed sundry exceptions, none of which referred to the registration of this mortgage. • More than twenty-seven days had elapsed from the filing of the report of the special master to the date when the Circuit Judge heard the cause or exceptions to the report of the special' master. However, on that morning Mr. Perry first had his attention drawn to the date of the registration of this mortgage, and he accordingly moved the Circuit Judge to allow him to add an exception covering this point. When the Circuit Judge pronounced this decree he overruled all the exceptions to the report of the special master, and confirmed the same, but did not refer to the motion of Mr. Perry to be allowed to make an additional exception. Hence this first exception. We apprehend that this will prove an immaterial error on the part of the Circuit Judge, if this Court should reach the conclusion that the appellant had no right to add this exception, inasmuch as more than ten days had elapsed after the report had been filed, and that appellant was obliged in law to make his exception within the said ten days. Reference is made to sections 290, 294, 344, and 345 of the Code of Civil Procedure of this State. This Court, in McGhee v. Merriman, 43 S. C., 103, passed on sections 290 and 294, and in effect held that the exceptions there contemplated must be taken within ten days after notice of the filing of the report of the master or special master. Ret us see if the remaining sections, 344 and 345, throw any light on this subject. According to the view which prudence suggests in construing these sections, so far as they contain any reference- to sections 290 and 294, in their application to exceptions made to the reports of masters or special masters or referees, they only give to a Circuit Judge the power to review the findings of fact and conclusions of law as embodied in such reports, and to reverse, modify or affirm the same, and have no bearing in fixing the time limited to making and serving the exceptions. This view of this matter has obtained at the bar for many years. Rule 30 of the Circuit Court lends force to this construction in a measure. Ten days being fixed as the time in which exceptions must be taken to such reports. It would seem that this ground of appeal is untenable, especially in view of the decision in McGhee v. Merriman, supra.

2 But suppose, under section 195 of the Code of Civil Procedure, it is within the discretion of the Circuit Judge, he has not exercised such discretion. Indeed, his decree is not consistent with any exercise of such discretion on his part. This conclusion on our part almost renders it unnecessary to examine the fifth ground'of appeal. If the question submitted by appellant in this fifth ground of appeal could not come before his Honor unless covered by an exception on this point to the report of the special master, it is very certain that this Court cannot consider it. Let the grounds of appeal be dismissed.

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