Greenwood Lumber Co. v. Cromer Et Ux. ( 1954 )

225 S.C. 375 (1954) 82 S.E.2d 527

GREENWOOD LUMBER CO. ET AL.
v.
CROMER ET UX.

16878

Supreme Court of South Carolina.

June 7, 1954.

Thomas A. Wofford, Esq., of Greenville, for Appellant, L.E. Cromer.

Messrs. Wyche, Burgess & Wyche, of Greenville, for Appellant, Margaret M. Cromer.

Messrs. Mays, Featherstone & Bradford, of Greenwood, for Respondents.

The following is the order of Judge Bellinger in the court below.

This matter comes before me on motion of the plaintiffs for a general order of reference and motion of the defendant, Margaret M. Cromer, for an order framing issues in equity. The two motions were argued together.

The cause being in equity is triable by the Court or a referee unless issues are framed for trial by a jury under Section 10-1057 of the 1952 Code, or under the general equity powers of the Court. The motion of Mrs. Cromer is made under the Court procedure.

The framing of issues under either procedure is entirely within the discretion of the Court. Issues framed under either procedure are intended for the enlightenment of the conscience of the Court and must be tried by the judge who frames them. Such issues do not survive the term. Note the following sections of the 1952 Code:

Section 10-1057: "In all equity causes in the courts of common pleas of this State the presiding judge may, in his discretion, cause to be framed an issue or issues of fact to be tried by a jury."

Section 10-1241: "Issues submitted to juries pursuant to § 10-1057 shall be tried at the same term of court at which they are ordered and, if necessary, a day shall be set for the trial of the same. But a continuance may be ordered by the court in proper cases."

Section 10-1242: "Upon the first day of the term immediately after the call of calendar three the presiding judge shall call for cases in which such issues are desired, and if any are presented in which such issues are, in his judgment, proper he shall at once call the same to be framed and placed upon the proper calendar for trial."

Section 10-1243: "At some time during the term the presiding judge shall hear the cause out of which such issues are ordered and shall, some time during said term or thereafter, file his decision therein as in other equity causes from which decision there shall be the same right of appeal as now exists in like causes."

In Erskine v. Erskine, 107 S.C. 233, 92 S.E. 465, 468, the Court said:

"We concur, also, with the court below that, in actions in equity, the parties are not entitled, as a matter of right, to trial by jury. Even when they comply with the statute and rule 28 of the circuit court, the matter is still, by express terms of the statute in the discretion of the court".

In Montague v. Best, 65 S.C. 455, 458, 43 S.E. 963, 964, the Court said:

"It would seem that issues in chancery cases, framed under this section, were intended for the aid of the judge who framed the issues, and that the order framing such issues for that particular term and judge would not survive the term, unless, by special order, such issues were continued along with the cause. Whether such an order would bind the next judge, need not be decided. There does not appear to have been any order continuing such issues as framed beyond the term. A mere failure to try the cause, or a general continuance of the cause, would not, in the absence of a special order for that purpose, carry forward such framed issues to the next term, so as to bind the succeeding judge."

In Holly Hill Lumber Co. v. McCoy, 201 S.C. 427, 23 S.E. (2d) 372, 380, there was a suit for specific performance of an executory contract — an option — to convey land. The Court said:

"Nor did the Court err in granting a general order of reference and overruling the defendant's motion to frame issues under Section 593, 1942 Code. This was in the sound judicial discretion of the Circuit Judge, and it does not appear that it was erroneously exercised. De Loach v. Sarratt, 55 S.C. 254, 33 S.E. 2, 10, 35 S.E. 441; Cantey v. [Edward L.] Summersett & Co., 138 S.C. 151, 135 S.E. 875, 876; Erskine v. Erskine, 107 S.C. 233, 92 S.E. 465, 469; Neal v. Suber, 56 S.C. 298, 33 S.E. 463, 465; Hammond v. Foreman, 43 S.C. 264, 21 S.E. 3, 4."

In Jefferson Standard Life Ins. Co. v. Boddie, 202 S.C. 1, 23 S.E. (2d) 817, 818, issues framed by Judge Dennis were disregarded in a subsequent trial of the case by Judge Mann. The Court said:

"We may say at the outset that issues framed in chancery under Code, Section 593, do not survive the term, and that a succeeding Circuit Judge before whom the cause comes up for trial at a later term is not bound to be governed thereby. Johnstone v. Matthews, 183 S.C. 360, 191 S.E. 223; In re Nightingale's Estate, 182 S.C. 527, 189 S.E. 890. The decision in these cases rests upon the principle that issues in chancery framed under this Section were intended for the aid of the Judge who framed them, and do not bind the trial Judge before whom the cause may finally be heard. And see Montague v. Best, 65 S.C. 455, 43 S.E. 963; Momeier v. John McAlister, Inc., 190 S.C. 529, 3 S.E. (2d) 606."

The pleadings and supporting affidavits show that the plaintiffs' efforts to prove the alleged indebtedness of L.E. Cromer to Greenwood Lumber Company and to trace building materials into the various houses owned by the two defendants, so as to show a constructive trust, will require a long and complicated accounting which can be tried to best advantage by a referee. That phase of the case is clearly one for reference. There is no reason why the issue as to whether Mrs. Cromer signed the deed to J. Perrin Anderson, as Trustee, under duress cannot be tried by a referee just as well as it can be tried by a jury. The entire case can probably be tried and disposed of more expeditiously by referring the entire matter rather than referring a part and framing issues as to a part.

It appears that the defendant, L.E. Cromer, was manager of the business of the plaintiff, Greenwood Lumber Company, throughout the period when his alleged indebtedness to the Company was incurred. He should be in better position that any one else to understand the books of the Company and explain any entries or lack of entries dealing with his transactions. Such information should be furnished before the plaintiffs go into a general reference. Therefore,

It Is Ordered that the motion of the defendant, Margaret M. Cromer, to frame issues be and is hereby denied and this entire cause is referred to D.S. Jones, Esq., Master in Equity for Greenwood County, to take the testimony and report his findings of fact and conclusions of law.

It Is Further Ordered that the defendant, L.E. Cromer, on ten days' notice from the Master do appear before the Master and answer under oath any questions which may be propounded to him by the Court or by the plaintiff, Greenwood Lumber Company, relative to any of his transactions with the plaintiff, Greenwood Lumber Company.

It Is Further Ordered that the Master in his discretion may appoint an independent auditor to make an examination of all or any part of the records of Greenwood Lumber Company and report his findings to the Master for his assistance.

June 7, 1954.

LITTLEJOHN, Acting Associate Justice.

In this action the complaint alleges that the defendant L. E. Cromer was the general manager and secretary of the plaintiff Greenwood Lumber Company, and that he converted to his own use a large amount of money, building material and credits of the company, and that the building materials so converted were used in the construction of a number of houses on lots owned by the defendant L.E. Cromer individually, and in partnership with others. It further alleges that the defendant L.E. Cromer admitted that he converted property of the Greenwood Lumber Company to build houses, and that he conveyed to J. Perrin Anderson, as trustee, certain real estate to be held by the trustee subject to the payment of his debts to the company, and that the defendant Margaret M. Cromer, wife of L.E. Cromer, conveyed certain real property belonging to her to the same trustee as security for the same indebtedness.

The complaint asks that the defendants be enjoined from selling or disposing of any real estate located in Greenwood County, (with certain exceptions) that a receiver be appointed, that the trust deed be reformed, that the property described in the trust deeds be impressed with a trust for the payment to Greenwood Lumber Company of the value of the materials used in construction of the houses, for an order providing for the sale of the lots, that an automobile owned by L.E. Cromer be impressed with a trust, that certain insurance policies belonging to L.E. Cromer be impressed with a trust, that L.E. Cromer be required to produce books and records in his possession, and that an accounting be had under the supervision of the Court of all funds, building materials, credits and other assets of Greenwood Lumber Company heretofore converted to the use of L.E. Cromer.

The defendant Margaret M. Cromer answering, sets up a general denial and alleges that the deed executed by her in favor of the trustee was obtained by undue influence, coercion and duress of plaintiffs, their agents and attorneys, and alleges that the instrument as to her is null and void.

The defendant L.E. Cromer answering, denies the material allegations of the complaint, and alleges that the trust deed is null and void.

On October 5, 1953, the circuit court heard two motions, one by counsel for the defendant Margaret M. Cromer, to frame issues to be submitted to the jury under Section 10- 1057 of the Code, and one by counsel for the plaintiffs to refer all issues of law and of fact to the master in equity for Greenwood County.

At the hearing the trial court stated that the case could not be tried at the present term of common pleas, and that the judge who tried the case would have to frame the issues. Counsel thereupon moved that the case be set down for trial at the ensuing term of the court of common pleas which convened on November 2, 1953.

On October 30, 1953, the trial court filed an order refusing the motion to frame issues and referring all issues to the master for trial, and also directing "the defendant, L.E. Cromer, on ten days notice from the master, do appear before the master and answer under oath any questions which may be propounded to him by the court, or by the plaintiff Greenwood Lumber Company, relative to any of his transactions with the plaintiff Greenwood Lumber Company."

The exceptions of the defendant L.E. Cromer suggest error of the lower court in ordering the defendant to appear before the master to answer questions.

The exceptions of the defendant Margaret M. Cromer suggest error on the part of the lower court in holding, (1) that the issues framed for trial by a jury under Section 10-1057 of the Code are intended for the enlightenment of the court, (2) that the trial court abused its discretion in refusing to frame issues under Section 10-1057 and 10-1457 of the Code of Laws of 1952, and (3) in basing the denial of the motion upon the ground that "such issues do not survive the term."

It is urged on the part of the defendant L.E. Cromer that the order of Judge Bellinger violates Article 1, § 17 of the Constitution of the State of South Carolina, and Article XIV, subsection 1 of the Constitution of the United States, and Section 26-408 of the Code of Laws of South Carolina, all of which relate to the proposition of law that a person shall not be required to answer questions which might incriminate him. It is further urged that the defendant L.E. Cromer had no opportunity to be heard on whether or not he should be questioned, and that the directive appeared without notice in the order of the lower court.

A trial court of course, has inherent power to require the appearance of witnesses even as counsel for either side may require the presence and testimony of witnesses. The protection afforded by the rule against self-incrimination may not be injected to invalidate a subpoena or the court's order to appear. An order in this case, or a subpoena in some other case, is not invalid merely because of the possibility that the witness sought to be questioned may possibly be asked some question the answer to which might tend to incriminate him. Were the rule otherwise, each witness might determine for himself whether or not he should answer a subpoena to court and could refuse to appear because he felt that he might be asked some question the answer to which would incriminate him, even though his fears be purely imaginary.

The exception cannot be sustained but the rights of the defendant L.E. Cromer to refuse to answer questions for the reason set forth in the appeal should be determined at an appropriate time.

The questions raised by the appeal of Margaret M. Cromer relate solely to the refusal of the trial court to frame issues for determination by a jury. From a reading of the whole order we conclude that the exceptions must be overruled. It appears that the lower court properly exercised its discretion in treating the case as one purely in equity and in refusing to frame issues for the defendants. We do not think that the order taken as a whole, is reasonably susceptible of the interpretation that it was based on the ground that the issues do not survive the term.

Had issues been submitted to the jury under the terms of Section 10-1057, then of course, under Section 10-1457 the findings would have been conclusive. The trial court held that such findings were for the enlightenment of the court; it did not hold that the same were not conclusive, and obviously in addition to being for the enlightenment of the conscience of the court the same would be conclusive under Section 10-1457. Inasmuch as the court properly exercised its discretion in refusing to frame the issues, what effect the framing and submission would have had becomes of no consequence.

All exceptions are overruled. Let the order of the lower court be affirmed and the case remanded.

STUKES, TAYLOR, OXNER and LEGGE, JJ., concur.