110 S.E. 124 (S.C. 1921), 10789, Outlaw v. Barnes

Docket Nº:10789.
Citation:110 S.E. 124, 118 S.C. 189
Opinion Judge:GARY, C.J.
Attorney:M. W. Seabrook, of Sumter, for appellant. Tatum & Jennings, of Bishopville, for respondents.
Case Date:December 19, 1921
Court:Supreme Court of South Carolina

Page 124

110 S.E. 124 (S.C. 1921)

118 S.C. 189




No. 10789.

Supreme Court of South Carolina

December 19, 1921

Appeal from Common Pleas Circuit Court of Lee County; H. F. Rice, Judge.

Action by L. Lawrence Outlaw against Henry H. Barnes and others. From decree rendered, plaintiff appeals. Decree set aside, with directions.

M. W. Seabrook, of Sumter, for appellant.

Tatum & Jennings, of Bishopville, for respondents.


[118 S.C. 190] This is an action for partition of land. The defendants by their answer raised the issue of title, which was tried by a jury at the spring term of the court for Lee county in 1920, and resulted in a verdict for the defendants, of the land in question. The plaintiffs appealed, and a new trial was granted. 108 S.C. 451, 94 S.E. 868. The case was again tried, before his honor Judge Rice and a jury, during the latter part of the year 1919; and under the direction of the court the jury rendered the following verdict:

"We find for the plaintiffs a one-fourth undivided interest in the land in dispute."

No decree was made carrying into effect the verdict of the jury until one was signed by his honer Judge Rice on the 20th of September, 1920, at Aiken, S. C., by consent.

His honor Judge Rice signed another order on the 31st of March, 1921. The record contains this statement:

"At the time the above motion for this order was noted and heard, and when this order was signed, Judge Rice was holding court at Columbia in another circuit, and was not the judge of nor presiding in the Third circuit."

The first question that will be considered is whether the charges made by the second decree were merely clerical. There is no question that the two decrees were materially and substantially different.

The second question is whether his honor Judge Rice had jurisdiction to render the second decree, under the circumstances just mentioned. The following decisions show that he did not have the power and authority to make such...

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