Hickson Lumber Co. v. Stallings , 91 S.C. 473 ( 1912 )

The opinion of the Court was delivered by

Mr. Ci-iiEE Justice Gary.

The following statement appears in the case:

“This, case was commenced by service of sumriions and complaint February 7, 1907, asking for recision and cancellation of the contract, set up in complaint and for injunction, upon which an order for a temporary injunction was granted by Judge R. C. Watts. ' After answer served by defendant, a motion was made in his behalf before Judge Memminger, to dissolve the temporary injunction which was refused, and the injunction continued, until hearing of cause on its merits. From this order defendant served notice of appeal to the Supreme Court, and thereafter docketed the cause for trial on calendar No. 1. The plaintiff’s attorneys thereupon moved before Judge Watts, to transfer the cause from calendar one to calendar two, and from the order of Judge Watts granting this motion, defendant appealed to Supreme Court. Upon hearing on appeal, the order of Judge Watts was sustained, and the cause docketed on calendar No. 2 for trial. The defendant then moved before Judge Klugh, to- have issues submitted to- a jury, which motion was refused, and, on motion of the plaintiff, it - was referred to- the master, to take and report testimony. Upon the coming in of this testimony, the defendant again moved before Judge Shipp, to submit issues to jury, which motion was refused, and the case heard by Judge Shipp, on the testimony reported, as well as that offered at the hearing, at Darlington, S. C., Spring term, 1911. This appeal is taken from decree of Judge Shipp-.”

The decree of his Honor, Judge Shipp-, will be set out in the report of the case.

In- his decree he says: “There seems to- be no- question of law involved, upon which the attorneys in the cause do- not agree, and the questions of fact upon the issues raised, were fully argued before me by counsel.” And the appellant’s attorneys in their argument, mentioned “the fact, that the law of the case is admitted,” thus showing that only issues of fact are involved.

It was incumbent on the appellant, to satisfy this Court, by the preponderance of the evidence, that his Honor, the presiding Judge, erred in his findings of fact, which he has failed to- do.

The testimony is voluminous, and it would not subserve any useful purpose to discuss it in detail.

Judgment affirmed.