Pratt v. Timmerman

May 16, 1904. The opinion of the Court was delivered by The facts of this case are set forth in the opinion of the Supreme Court upon the former hearing, and reported in 62 S.C. 441, 40 S.E., 941.

In order to understand the manner in which the issues raised by the pleadings were disposed of by the Circuit Court, it will be necessary to set out a copy of the decree of his Honor, Judge Gage, in the report of the case.

There are numerous exceptions, but it will not be necessary to consider them in detail.

The first question that will be considered is whether the defendants were entitled, as matter of right, to a trial by jury of any issue raised by the pleadings. The plaintiffs by their complaint not only seek to recover a judgment for money, but likewise the foreclosure of a lien. The cause of action set forth in the complaint is, therefore, unquestionably equitable in its nature. The defendants in their answer, "by way of affirmative relief, or counter-claim," allege fraud, misrepresentation, failure of consideration and non-compliance by the plaintiffs with the terms of the contract set forth in the complaint, and in the prayer to their answer ask, "that the contract of defendants with plaintiffs to give notes and keep said machinery, be rescinded; that these defendants have the sum of sixteen hundred dollars damages allowed them for the specific causes set forth in answer herein; that said machinery be sold and the proceeds applied to the liquidation of said damages, costs, c., and for such other relief as is equitable and just." The only issues of fact of which a party to the action has the right to demand trial by a jury, are in actions for the recovery of money only, or of specific real or personal property. Code, section 274. This case does not fall within the provisions of the section of the Code just mentioned, and the defendants did not have the right to insist upon a trial by jury.

There is another reason why the defendants could not successfully insist upon a trial by jury. The facts alleged in the answer grew out of the contract set forth in the complaint, and were interwoven with it. They entered into the plaintiff's equitable cause of action as part of the transaction set forth in the complaint, and in the language of the Court in Gregory v. Perry, 66 S.C. 459, "the pleadings raised no issue separate and distinct from the equitable cause of action stated in the complaint, nor did they raise issues involving the recovery of money only, or of specific real or personal property. A trial of the issues by a jury was, therefore, not demandable of right" — citing Ins. Assn. v. Berry, 53 S.C. 129,31 S.E., 129. To the same effect is McLaurin v.Hodges, 43 S.C. 187, 31 S.E., 53. All the issues raised by the pleadings were equitable in nature, and if his Honor, the presiding Judge, sitting as a chancellor, had seen fit to exercise his power, he could have disposed of all the issues raised by the pleadings, and was not compelled to have referred any of the issues to a jury. There is no appeal either by the plaintiffs or the defendants from that part of the order referring certain issues to the jury. It, therefore, remains of force, and must be carried into effect when the case is remanded to the Circuit Court.

We will next dispose of the question whether the Circuit Court erred in construing the opinion of this Court upon the former trial. By reference to that opinion it will be seen that the only question which this Court undertook to decide was whether his Honor, the Circuit Judge, correctly interpreted the contract entered into between the parties. The construction of the opinion of this Court by the Circuit Judge was free from error.

The next question that will be considered is whether his Honor, Judge Aldrich, had jurisdiction to grant an order of reference at chambers. The case of Green v. McCarter, 64 S.C. 290, 42 S.E., 157, shows that the exceptions raising this question cannot be sustained.

The exceptions also raise the question whether his Honor, Judge Aldrich, erred in ordering that the parties to the action have leave to introduce additional testimony. When a new trial is ordered in an equity case, any of the parties to the action may rely upon the testimony taken by the master or referee upon the former hearing. They may also make a motion for an order allowing them to offer additional testimony, which should be granted by the Circuit Judge, if, in the exercise of his discretion, he is of the opinion that such order will subserve the ends of justice. He may determine this question from an inspection of the pleadings.Green v. McCarter, 64 S.C. 290, 42 S.E., 157.

The exceptions likewise raise the question whether a succeeding Circuit Judge has the power to alter or modify the order of his predecessor, referring it to the master simply to take and report the testimony. Such an order is merely administrative, and may be changed by a succeeding Circuit Judge. Gregory v. Perry, 66 S.C. 459,45 S.E., 4; Ins. Co. v. Berry, 53 S.C. 131,31 S.E., 53. When, however, an order refers the issues of law or of fact to a master of referee, such order is binding upon the succeeding Judge. Cudd v. Williams, 39 S.C. 452,18 S.E., 3.

These views practically dispose of all the exceptions except those assigning error in findings of fact.

This Court concurs with the Circuit Judge in his findings of fact, and is satisfied with his reasons for such findings.

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