Pooler v. Smith

November 27, 1905. The opinion of the Court was delivered by This is an action for partition of land. The complaint alleges that Edwin Ervin died intestate seized and possessed of the land therein described and leaving as his heirs at law his brothers and sisters described in the complaint; that the defendant Phyllis Smith is in the unlawful possession of said land and claims the same under a pretended marriage with intestate. The defendant denied the material allegations of the complaint. The jury rendered a verdict in favor of the defendant. The plaintiff appealed upon exceptions which will be set out in the report of the case. The exceptions will be referred to by their numbers

First, second and fourth exceptions: The appellant did not state the grounds of objection to the testimony. The exceptions cannot, therefore, be sustained.

Third exception: The ruling of his Honor, the presiding Judge, is sustained by the following authorities:Perry v. Massey, 1 Bail., 32; Farr v. Thomson, Cheves, 44; Bank v. Shier, 4 Rich., 240; Bauskett v.Keitt, 22 S.C. 187.

Fifth and sixth exceptions: These exceptions relate to the issues presented by the pleadings. If the presiding Judge did not state the issues correctly, it was the duty of the appellants' attorneys to call attention to such fact. Furthermore, the defendant had the right to show that the title to the land was in a third person not a party to the record. Sutton v. Clark, 59 S.C. 440.

Seventh exception: His Honor not only charged in the manner set forth in the exception, but added: "It may, however, be rebutted, where you bring positive proof to show that the child could not be the lawful child of a man and his wife." This was a correct proposition of law, and if the plaintiffs desired fuller instructions, it was their duty to present requests to that effect.

Eighth and ninth exceptions: The language of the presiding Judge refusing the request is set forth in the ninth exception, and states a satisfactory reason for refusing to charge the same.

Tenth exception: No errors are specified. It does not appear from the record that the request was refused, but, on the contrary, it was substantially charged.

Eleventh exception: The request embodied a sound proposition of law, and was properly charged. If the appellants desired a more specific charge, it was incumbent on them to prepare a request to that effect.

Twelfth and thirteenth exceptions: These exceptions relate to the refusal of the motion to grant a new trial. There is testimony tending to sustain the verdict of the jury, but we do not deem it necessary to cite it at length.

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

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