Dean v. Standard Warehouse Co.

• Citation: 116 S.E. 440,123 S.C. 353
• Decision Date: 21 March 1923
• Docket Number: 11168.
• Parties: DEAN v. STANDARD WAREHOUSE CO.
• Court: United States State Supreme Court of South Carolina

116 S.E. 440

123 S.C. 353

DEAN v. STANDARD WAREHOUSE CO.

No. 11168.

Supreme Court of South Carolina

March 21, 1923

Appeal from Common Pleas Circuit Court of Anderson County; George E Prince, Judge.

Action by Rossie Dean against the Standard Warehouse Company. From an order granting a new trial after a judgment for defendant defendant appeals. Affirmed.

John K Hood, of Anderson, for appellant.

A. H Dagnall, of Anderson, for respondent.

FRASER J.

The plaintiff brought this action for five bales of cotton, on the 2d day of October, 1920. T. D. Dean deposited with the Standard Warehouse Company the five bales of cotton, and took the warehouse receipts for them. He took it home, and delivered it to his wife, Rossie Dean, the plaintiff herein, as security for money loaned to the said T. D. Dean by Mrs. Rossie Dean. A short time after that, T. D. Dean took the cotton away from the warehouse, and delivered it to the Anderson Cotton Company, who sold it and deposited the proceeds of sale to the credit of T. D. Dean, in the Bank of Anderson. On the 18th of January, 1922, Mrs. Dean presented the warehouse receipts to the defendant, and demanded the cotton. The written assignment of the warehouse receipts was not indorsed on the receipt until just before the demand was made. The defendant, of course, could not deliver the cotton it had already delivered, and denied liability therefor. On the trial of the case the trial judge charged the jury that the warehouse was entitled to notice of the assignment of the warehouse receipt, and, if it did not have notice, the defendant was not liable. There was no suggestion of notice to the warehouse company, and the jury found for the defendant. The plaintiff made a motion for a new trial, which was granted. The defendant's attorney had no notice of the motion. Three orders were made in the matter of a new trial as follows:

"Order of August 19th.

A motion for a new trial having been made by A. H. Dagnall, Esq., attorney for the plaintiff, after argument, it is ordered that the verdict of the jury be set aside and a new trial be granted."

"Order of August 21st.

On the 19th inst. I signed an order in the above-stated case herein, reading as follows: 'A motion for a new trial having been made by A. H. Dagnall, Esq., attorney for the plaintiff, after argument, it is ordered that the verdict of the jury be set aside and a new trial be granted.'

At the time of signing the order I was under some misapprehension as to the matter of argument by defendant's counsel, who has this day stated that he desired to be heard thereon; it is therefore ordered that the foregoing order be, and is hereby, set aside and rescinded.

It is further ordered that the hearing of argument on the motion for a new trial herein be set for 10 o'clock a. m., on Wednesday, the 23d instant, at my chambers, and that this order be forthwith filed with the clerk of this Court, and that he give notice thereof to the attorneys for plaintiff and defendant, respectively."

"Order of August 28th.

In the above-entitled cause a verdict for the defendant was rendered at the last term of court, and a motion for a new trial was made in behalf of plaintiff by Mr. A. H. Dagnall. I, being very unwell, after Mr. Dagnall had argued his motion, continued the hearing till the following week, at the suggestion of Mr. John K. Hood, attorney for the defendant. But the following week I was confined to bed, and several weeks later I decided the motion without hearing any further argument, and granted a new trial. On the day this order was filed Mr. Hood appeared before me, and objected on the ground that I had not heard him, although I had promise to do so. Whereupon I made an order revoking my former order and setting a day for hearing both sides.

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