Brock v. Kirkpatrick

I was for some time inclined to consider the Circuit Judge in error in his charge to the jury in this case, but a calm review of the decision of the first appeal in this very cause has caused me to change my views. This is the holding of this Court in the case of L.A. and T.H. Brock, as plaintiffs, against Hannah Kirkpatrick and Annie Taylor, asdefendants, in 60 S.C. at page 352, 38 S.E., 779: "But in this case the statute (statute of limitations) did not begin to run when the plaintiffs held a past due obligation of the testatrix and the defendants held lands devised (to them) and liable therefor, as was held by Judge Gage. The statute began to run only after the remedy against the executor had been exhausted. The judgment was recovered in March, 1895, execution issued and nulla bona returned thereon. This action was commenced in April, 1899, only four years after the remedy against the executor had been exhausted. It is clear, therefore, that the statute of limitations could not be properly set up as a defense by these defendants, and that the plaintiffs' first ground of demurrer directed against that defense should have been sustained; and that it was error in the Circuit Judge to overrule it." The judgment of this Court was as follows: "It is the judgment of this Court that the decree of the Circuit Judge herein be reversed, in so far as it overruled the plaintiffs' first ground of demurrer; and that in all other respects the judgment of the Circuit Court be affirmed, except as to the right of homestead, which was left open by the Circuit Judge, and that the case be remanded to the Circuit Court for the purpose of hearing and determining the claim of homestead, with leave to the defendants to apply to that Court for such amendments to their answer as may be deemed necessary to bring before the Court all such facts as may be pertinent to the claim of homestead."

The plaintiffs and defendants being parties to the aforesaid decision of this Court, are bound by it, and neither of said parties had the right to disregard it; clearly they had no right to bring in question again any question as to the statute of limitations as a defense. The Circuit Judge who heard this cause had no right to open up this defense, because the demurrer of plaintiffs to so much of defendants' answer as set up the defense of the statute of limitations had been settled by the decision of this Court. The action was only remanded to the Circuit Court to pass upon the claim of defendants to a homestead.

The errors of the Circuit Judge as presented by this appeal now being considered are perfectly harmless.

The appeal from Judge Townsend's charge to the jury should be dismissed.