Garner v. Garner , 72 S.C. 437 ( 1905 )

I express no opinion as to whether the evidence is strong enough to justify a final decree in favor of the plaintiff annulling the sale of the land as against the defendants, Arthur R. Garner and Maggie Garner, who set up the defense of purchasers for valuable consideration without notice; nor as to whether the Circuit Judge was right in holding the mere fact of these defendants being advantaged by the chilling of the bidding at the sale when Joseph F. Garner, their grantor, bought, would be sufficient to set aside the sale as to them. But I think the relationship of the Garners and the evidence of lack of means of Arthur R. Garner and Maggie Garner to make the purchase, were sufficient to make it safer to refuse a motion to dismiss the complaint without hearing all the evidence that either side had to offer.

I do not assent, however, to the view taken in the opinion of Associate Justice Gary, that the Circuit Judge should never dismiss an equity cause, upon hearing the evidence of the plaintiff, however conclusively it may show he is not entitled to recover. The authorities cited in the majority opinion fully establish that where an issue of fact is referred to a jury a nonsuit cannot be granted. The philosophical reason for this is that an order of nonsuit is not conclusive of the issue, and, therefore, there should be a verdict, which is conclusive, as contemplated by the statute. But on the trial of an issue from an equity cause submitted to a jury the practice of directing a verdict for defendant when it is plain the plaintiff has not established his case, is sustained in Brock v. Nelson, 29 S.C. 49, 6 S.E., 899, and Gilreath v. Furman,57 S.C. 289, 35 S.E., 516. It follows inevitably that where the Circuit Judge is trying the cause on evidence taken in open court or by a master or referee, under the order of the court, and it appears clearly from the plaintiff's own showing that in no view of the facts could there be a decree in his favor, the Circuit Judge may dismiss the complaint without consuming the time and labor necessary to take the evidence on the part of the defendant. To curtail the power of the Circuit Court in this regard would, in my opinion, be fruitful of delay and unnecessary labor. No doubt the case should be quite clear to warrant such action, because in such cases, as in cases where nonsuits are granted or verdicts directed, there is always the possibility of delay from the necessity of a new trial, if on appeal this Court should regard the evidence worthy of rebuttal.

THE CHIEF JUSTICE did not participate in this opinionbecause of illness.