34 S.C. 270 | S.C. | 1891
The opinion of the court was delivered by
The question presented by this appeal having arisen under a demurrer, it will be necessary to set forth, substantially, the allegations of the complaint, as follows: First. That one Thomas Rhodes died intestate, seized and possessed of the tract of land which is the subject of the action. Second. That the said land descended to the four plaintiffs, naming them, as the heirs at law of said intestate. Third. That said plaintiffs are each entitled to one undivided fourth part of said premises. Fourth. That defendant “is in possession of said premises, claiming to have some interest in same and wrongfully withholds same from these plaintiffs.” Fifth. That plaintiffs “own no other land in this State in common with defendant.” Sixth. That the intestate left no debts. The only judgment demanded is for an accounting and for partition. To this complaint defendant filed a written demurrer : 1st. “That several causes of action have been improperly united, one being for partition of a tract of land between the plaintiffs, and the other being to recover the
The case came on for hearing before his honor, Judge Norton, Avho overruled the demurrer and ordered the ease to be transferred to calendar one. From this ruling defendant appeals upon the several grounds set out in the record, Avhich raise but two questions: 1st. Whether there Avas an improper joinder of causes of action. 2nd. Whether the court had jurisdiction to try the case.
jurisdiction of equity matters, it could not take jurisdiction of a cause of action purely legal in its character, and hence, as Avas held in Albergottie v. Chaplin (10 Rich. Eq., 428), that court-could not take jurisdiction of a case in which the demand Avas for the recovery of real estate from one or more of the defendants, in order that it might be partitioned among the plaintiffs and the other defendants. But since the Court of Equity, as a separate tribunal, has been abolished and the jurisdiction formerly belonging to it has been vested in the Court of Common Pleasi it is very manifest that there is no objection, on jurisdictional
It seems to us, therefore, that in any view of the case, the demurrer was properly overruled, and the judgment of this court is, that the judgment of the Circuit Court be affirmed.