So. Ca. Mutual Ins. v. Price

The opinion of the Court was delivered by

Mr. Justice Jones.

This action is for the foreclosure of the statutory lien claimed by plaintiff under the act of the legislature incorporating said insurance company, and-also under the by-laws and contract of insurance, and also- for the recovery of the assessments and dues set forth in the complaint which are secured by said lien. The answer was a general denial. The case was docketed on Calendar No. 2. On the call of the case plaintiff’s attorney moved for an order of reference to the master, which was resisted by defendant’s attorney. The Court refused the motion on the ground that the case is not one in equity, but is a law case and should be tried 'by a jury, and further ordered the case transferred to Calendar 1, for trial by jury. We think it was error to refuse the reference on the ground stated and in transferring the case to the calendar for trial by jury. The cause of action stated in the complaint is one solely of equitable cognizance, and the issues raised are triable by the Court, subject to the right of the Court to refer any issue to a jury as allowed in equity cases. Insurance Company v. Berry, 53 S. C., 130.

The order refusing a reference is to be without prejudice to any future application for such reference, and the order transferring the case to' Calendar 1 for trial by jury as an action at law is reversed.