Aultman v. Salinas , 44 S.C. 299 ( 1895 )

The opinion of the court was delivered by

Me. Justice Townsend.

When the matters involved in a former appeal in this cause were considered, this court discovered that the Circuit Judge who heard the cause in the court below had failed to pass upon the question of homestead, which was clearly presented in the pleading, and to which issue testimony had been offered; and that if this claim of homestead was allowed, it would necessarily affect the other question of damages wrought to the plaintiffs by the defendants withholding possession from them of the house and lot in dispute. Hence this court remanded the cause “to the Circuit Court for the purpose of hearing and determining the question of homestead, and how far the amount of damages to which the plaintiffs are entitled may be affected thereby.” This will appear by reference to Aultman v. Utsey, 41 S. C., 304. This branch of the action was called up at the regular June term, 1894, of the Court of Common Pleas for Abbeville County, in. this State, while his honor, Judge Ernest Gary, was presiding. The plaintiffs sought a continuance upon the ground that the case would require some testimony. The judgment of the Supreme Court was handed down on 21st April, 1894, and the hearing of Judge Gary occurred some time in the month of June, 1894. It does not appear from the case that any showing was made before Judge Gary of any facts upon which the delay of plaintiffs’ counsel to get ready for a trial might be excused. The presiding Circuit Judge in effect ordered the trial to go forward, and it was proceeded with. The testimony offered before Judge Izlar at the former hearing was considered. The Circuit Judge filed his decree on 25th June, 1894, sustaining the claim of defendants to the homestead of F. M. Pope, and also reducing the judgment of plaintiffs for damages to the sum of $233.34. From this decree the plaintiffs now appeal on fourteen grounds, which will now be considered.

1 The third exception imputes error to the Circuit Judge in hearing the cause over the objections of the plaintiffs, it being a law case, and the plaintiffs having a right to trial by jury. It is needless to pause very long in dismissing this ground of appeal. Unquestionably the plaintiffs, under our laws, have a right to a trial by jury. They likewise .had a right to wraive this trial by jury. This last they did in writing, and never asked leave to rescind such agreement, hence this ground of appeal is untenable.

2 By the thirteenth exception appellants insist that, the Supreme Court having remanded, the case for the purpose of hearing the question of homestead, the plaintiffs had a right to a hearing de novo, and that it was error in his honor to hold otherwise. It seems to us that the appellants did not raise any such question before the Circuit Judge. So far as the case shows, all that appellants did was to seek a continuance upon the ground that the cause would require some testimony. If they had had the testimony on hand ready for use, they would not have needed to continue the cause; they would have been ready to go to trial. If, without reasonable excuse, they had neglected to bring such testimony to the court for use at the trial, the fault was theirs, and they cannot now devolve their responsibility upon the Circuit Judge. However, the appellants contend that they had a right to a trial de novo. Let us see what were the surroundings of these two questions remanded by the Supreme Court for a new trial when Judge Gary took control of the cause.

3 The pleadings read before Judge Gary and Judge Izlar, respectively, were the same, and in defendants’ answer the claim by them to F. M. Pope’s homestead was distinctly made, and the teslimony relating to the homestead was before Judge Izlar, but he failed to pass upon the issue. If he had done so, the Supreme Court would have acted upon his conclusions. It was because Judge Izlar had failed to pass upon the testimony and the pleadings that claimed homestead, that this court sent the cause back to the circuit with directions to try that question. To this extent the judgment of this court was mandatory. Hence when the cause was brought up before Judge Gary, he instantly recognized the purpose, and said that “thejudgment of the Supreme Court was mandatory upon him to decide the question of homestead in the case as sent back to [by] the Supreme Court.” The attention of this court is called to the additional language of Judge Gary: “But if, upon the further hearing of the case, it appeared to the court that further evidence should be received, the court would permit such evidence to come in.” It is evident that the Circuit Judge felt that the judgment of the Supreme Court required that the Circuit Judge who should pass upon the question of homestead, should admit at the hearing before him, the testimony already taken in the cause, bearing upon and relating to the question of homestead, and that his rulings so impressed the minds of appellants’ counsel; and upon this, no doubt, appellants’ counsel base their contention that the Circuit Judge denied to them the right of a trial de novo.

Ordinarily, in a law case, as distinguished from an equity case, when the Supreme Court orders a new trial, it is intended that such a trial shall proceed as if no other trial had ever been had, subject, of course, to any rulings of the Supreme Court on the appeal. Judge Gary recognized this. He read the judgment on the appeal and the Case, and from these he saw that what the Supreme Court required was, that the Circuit Judge should pass upon the one issue. All the others had been disposed of. Under the circumstances of this particular case, we do not see that the Circuit Judge erred, especially as he offered to allow additional testimony if, during the progress of the trial, its propriety was made manifest. No application was made therefor. Again, it must be remembered that the attorneys for all the parties to the cause had agreed that the Circuit Judge should hear and determine all the issues without the aid of a jury; thus largely assimilating the hearing before the Circuit Judge to that of the same officer sitting as a chancellor in an equity cause. Concerning the last, this court, in its recent decision in the case of Cunningham v. Cauthen, ante, 95, sustained this same Circuit Judge, while sitting as a chancellor, when he refused to hold it error in a special master who declined to hear additional testimony as to a matter which, by the judgment of the Supreme Court, had been recommitted with instructions to apply testimony once offered upon the question recommitted for consideration. As before remarked, it is the proper practice, when a new trial is ordered in a legal case, that the Circuit Judge should euforce a new trial de novo; but we think, for the reasons already indicated, that the circumstances of this cause make it an exception to such general rule. This exception is overruled.

4 The first exception here presented by appellants imputes error to the Circuit Judge in holding that the judgment of the Supreme Court was mandatory, and that he;had no right to take further testimony. This exception embodies two propositions: First, that the judgment of the Supreme Court was mandatory; and, second, that the Circuit Judge, under the Supreme Court judgment, could not take other testimony. There can be no doubt that the Circuit Judge properly construed the judgment of this court as mandatory so far as the question of homestead was concerned. It was mandatory to that extent; but appellants are mistaken as to the views expressed by the Circuit Judge on the second proposition, for he did not hold that he would not admit such testimony. In addition to this, we would call attention to. the fact that appellants did not offer any additional testimony. Counsel should recall the language of this court in Moore v. Railroad Co., 38 S. C., 33. It was there announced: “Now, it is contended, and the case does disclose, that one of the plaintiff’s counsel, as the judge finished his charge, arose, and was in the act of addressing the court, when he was stopped by the judge with the remark: ‘I cannot hear any argument, but if you have any request’— At these words counsel said: !I have nothing more to say, sir.’ It seems to us counsel stopped too quickly. He ought to have demanded his right to be heard — of course, in courteous terms — and then, if the judge refused to hear him, we would have most thoroughly considered his complaint. We take a decided stand on counsel’s right to be heard in any court; of course, subject to the rules of law. We can have no sympathy or toleration for a practical denial of the rights of litigants, when the request of his counsel to be heard is made to the court (and refused); and in justice to the bench we are satisfied that no such attitude (to the bar) is ever occasioned knowingly. Still we would be understood in all frankness. If counsel had persisted, and then the court declined to make the proposed correction, we should have unhesitatingly upheld the rights and privileges of the bar.” Appellants stopped short in the assertion of what they conceived to be their right, if they have additional testimony to offer, by not making an actual tender of such testimony. As the matter now stands, we are considering an abstract proposition of law that has no direct or practical bearing upon the matter at issue. The exception must be overruled.

2 Appellants, by the second exception, complain that the Circuit Judge erred in considering evidence given in a former trial of the cause, without the consent of the plaintiff, said evidence having been given orally before Judge Izlar, and being no longer competent. We must be governed by the case. It nowhere appears therein that appellants’ counsel made any such objection in the court below. Such being the condition of things, it is not competent for appellants to raise that question before this court for the first time. This exception must be overruled.

5 The next exception — the fourth — relates to the effect of certain testimony upon the mind of the Circuit Judge. We cannot, under the Constitution, enter upon the consideration of this matter in a law case. This exception must be overruled.

2 The fifth exception raises a question that does not appear by the case to have been presented to the Circuit Judge, nor passed upon by him. It is overruled.

5 The sixth exception complains that the Circuit Judge erred in holding that the property in dispute was the homestead of F. M. Pope at the time he conveyed the same to G. W. Conner. The testimony discloses the fact that Francis M. Pope occupied this house and lot as a family residence at the time he conveyed the same — 7th December, 1886 — to G. W. Conner. We refer to the testimony of W. B. Utsey. But the “Case” does not purport to contain everything that was before the Circuit Judge. This exception must be overruled.

6 The next exception — the seventh- — alleges that the Circuit Judge erred in holding that the amount of damages to which plaintiffs (appellants) were entitled should be reduced by one-third thereof being deducted from the amount adjudged by Judge Izlar as due by defendants to plaintiffs as damages, as the only testimony looking to that result was that of the witness, W. B. Utsey, given in the former trial. The Circuit Judge bad more than the testimony of Utsey on the matter here complained of. It appeared from several questions, that Mrs. Utsey paid Mrs. Pope, in cash, $3,250, for the property. The law allows $1,000 in land as á homestead. This last amount is $83 less than one-third of the $3,250 paid by Mrs. Utsey for the property. Mathematical exactness is scarcely ever possible in these matters. Nearness in approximating is about the best that can be hoped for. The Circuit Judge has striven to reach this result, and we are not prepared to overrule his conclusion. This exception must be overruled.

7 Appellants’ eighth exception imputes error to the Circuit Judge in holding that the homestead of F. M. Pope was ever conveyed out of said Pope, his deeds therefor having been declared fraudulent by this court. We think that the appellants lose sight of the distinction growing out of the fact, that Pope’s said deeds were declared fraudulent only at the instance of his creditors. He himself never questioned said deeds. His creditors could only reach such of his property as was liable to levy and sale under execution against him. His homestead was never liable to such execution of his creditors, if their claims originated after 1868, when the Constitution was adopted, wherein such homestead was provided for as against creditors; therefore, Pope had a perfect right to convey away his homestead, so far as his creditors were concerned. This exception must be overruled. By the ninth exception the appellants raise somewhat the same question presented in the eighth exception, by suggesting that a deed set aside for fraud is as though such deed had never been made, and while such setting aside of the deed may revest the fraudulent grantor with title to his homestead, it cannot be made to so aid the fraudulent grantee. A patient consideration of the language used above in disposing of the eighth exception will show that this latter is also untenable. By the deed of Pope, he has rendered himself incapable of receiving any advantage from the transaction, for if we were to hold otherwise, he would be receiving a profit from his own wrong. Let this exception be overruled.

2 Appellants’ tenth exception alleges that the claim of homestead is res adjudicata, not having been set up by Mrs. Utsey in this cause, and A. J. Salinas & Sons being her privies in estate, and being bound by her acts in the cause. No such question was presented to or passed upon by the Circuit Judge. It is- too late to raise such question for the first time in this court. This exception is overruled. The eleventh exception raises a question not considered by the Circuit Judge, and not presented to him. It must, therefore, be overruled. ■

8 Appellants’ twelfth exception alleges, that if F. M. Pope ever had a homestead, he abandoned it by leaving the State, and it remains for his creditors. Counsel for appellants rely upon the recent case of Trimmier v. Winsmith, 41 S. C., 109, as authority for this proposition. When the two cases are compared, it will be seen how very different they are from each other. In the'case at bar, F. M. Pope sold and conveyed his homestead while he was a resident of this State, and long after such sale removed from this State to that of Arkansas. In Trimmier v. Winsmith, the homestead was for the life of husband and wife. They both were dead, and there was no intervening purchase of the homestead when Trimmier enforced his judgment. Besides, there were other facts connected with that case which rendered it very different from the case under consideration. This exception is, therefore, overruled.

2 The last exception — the 14th — -alleges that the Circuit Judge erred in holding that the defendants acquired any rights under this mortgage upon this house and lot, because Judge Izlar held — in which conclusion this court concurred— that the sale of such house and lot by the sheriff as the property of F. M. Pope cut out all intervening liens, and, therefore, the mortgage held by the defendants was cut off. No such question seems to have been presented to, or considered by, the Circuit Judge. All that this court did adjudge in the last case before it was subject to this right of defendants to have their right as to Pope’s homestead considered, otherwise it was a nugatory act to order a new trial of this issue. This exception must be overruled.

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