Thomson v. Brown ( 1897 )

The opinion of the Court was delivered by

Mr. Justice Pope.

These two actions came on for trial before his Honor, D. A. Townsend, at the February term of the Court of Common Pleas for Spartanburg County, on the report of a special referee and exceptions thereto. The decretal order of Judge Townsend and the exceptions will be reported.

It seems that an execution of a judgment for $347 and interest and costs obtained by defendant’s intestate against the plaintiff, in the Court of Common Pleas for Spartan-burg County, had been issued in that county, and after-wards transcripted to York County, by consent of parties, and while in York County the defendant, E. A. Crawford, as sheriff of the last named county, had levied upon some personal property alleged to be the property of the plaintiff in these two actions; but such sheriff discovering that such personal property was not the property of the plaintiff, Mrs. Thomson, did not sell the sáme, but was about to levy upon the real property of Mrs. Thomson, known as the “Beauty Spot” plantation, when Mrs. Thomson interposed the second above qamed action against the defendants thereto (including such'sheriff, Crawford). That then the defendants, Brown, as administrators of Brown, deceased, ordered Sheriff Nichols, of Spartanburg, to make their money out of lands or other property of Mrs. Thomson in Spartanburg County. Thereupon the first named suit was instituted. The object of both actions was to restrain the sheriff of Spartanburg and the sheriff of York counties, respectivety, from enforcing the executions in their hands until the plaintiff, Mrs. Thomson, could have settled by the Court her rights in the property in each county. Judge Izlar granted a temporary injunction, to continue of force until the two above entitled actions could be heard on their merits. An order of reference was made in each case to take the testimony and report upon the issues. When Judge Townsend came on to hear the cases, he found that, although the parties had consented that the same should be heard together, no order for the consolidation had been made. This he ordered. But after that it was discovered that the record was not complete, by reason of the absence of the testimony and report in one of the cases. Hence he ordered the two cases,' thus consolidated, to be recommitted to R. R. Hill,-Esq., as master, giving to each party the right to except to the report. And now appellant excepts to this decretal order of Judge Townsend, on eight grounds.

1 The first two exceptions raise the question of the power of his Honor, the Circuit Judge, to take any steps in the two cases at bar, because he had been of counsel while at the bar in the case of Thomson v. Peak et al. The “Case” not only absolutely fails to show any such fact as that the Judge (Judge Townsend) ever had any connection as counsel with the case of Peak ads. Thomson, but also that that cause has any connection with the two cases at bar. They must, therefore, be' overruled.

2 The next exception seems to point out the difficulty of the master for Spartanburg County having jurisdiction to hear causes in which Mrs. Jessie M. Thomson is plaintiff and E. A. Crawford, as sheriff of York County, is defendant, on the sole ground that they each reside in York County, although such causes are pending in the Court of Common Pleas for Spartanburg County, and in which they have each pleaded. To state this proposition is to refute it. Mrs. Thomson cannot obtain an injunction in a cause in Spartanburg County which she has commenced, and then claim that the Court of Common Pleas for Spartanburg County has no jurisdiction of her, on the ground that she now lives in York County. Nor can any difficulty exist as to defendant, Crawford, who, by the way, makes no objection to the jurisdiction. If Mr. Crawford had been the sole defendant, possibly some jurisdictional difficulty might have been created; but he is only one of the defendants to the cause, and the other two defendants are residents of Spartanburg County. See sec. 146 of our Code.

3 The next exception seems to take it for granted that the master will review Judge Izlar’s order for temporary injunction, but such is not the case. Everybody is respecting that temporary injunction. All that is sought is that plaintiff’s two causes of action shall be heard on their merits. If a decree shall upset plaintiff’s causes of action, of course the temporary injunction will be upset.

4 The next exception ■ complains that the minor children are not made parties. Well, no application has been made by the plaintiff to make them parties, and certainly she prevented Judge Townsend from hearing enough of the case to know whether these children 'should be made parties. She can, therefore, have no ground to complain of Judge Townsend in this regard.

The next exception, stating, as it does, that she and her minor children being the joint owners of undivided trust lands in litigation, &c., is utterly without foundation, so far as Judge Townsend’s order appealed from is concerned. He did not pretend to hear the controversy on its merits, and could not do so. All that he did was to recommit to the master.

The next exception says the Circuit Judge erred in not holding that the order of reference was a nullity, and dismissing the master’s report as void. This exception cannot be sustained, for the simple reason, as before stated, the Circuit Judge could not consider the merits of the causes in the absence of the very papers (the testimony and report thereon) themselves.

The other exceptions have all been considered in what we have before stated.

All the grounds of appeal are dismissed, and in order that there shall be no further delay in these matters, we will order the clerk of this Court to send the remittiturs down without delay.

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