Gadsden v. Fripp, 9021.

• Decision Date: 13 April 1964
• Docket Number: No. 9021.,9021.
• Citation: 330 F.2d 545
• Parties: Harold A. GADSDEN et al., Appellant, v. Harry M. FRIPP, Supervisor of Colleton County, South Carolina (Successor to the late J. H. Hayden, former Colleton County Supervisor) and/or Harry M. Fripp's Successors in Office as Supervisor of Colleton County and Colleton County of The State of South Carolina, Walterboro, South Carolina, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.2d 545 (1964)

Harold A. GADSDEN et al., Appellant, v. Harry M. FRIPP, Supervisor of Colleton County, South Carolina (Successor to the late J. H. Hayden, former Colleton County Supervisor) and/or Harry M. Fripp's Successors in Office as Supervisor of Colleton County and Colleton County of The State of South Carolina, Walterboro, South Carolina, Appellees.

No. 9021.

United States Court of Appeals Fourth Circuit.

Argued November 13, 1963.

Decided April 13, 1964.

Harold A. Gadsden, pro se (Samuel S. Mitchell, Raleigh, N. C., on brief), for appellant.

Thomas M. Howell, Jr., Walterboro, S. C., for appellees.

Before HAYNSWORTH and BOREMAN, Circuit Judges, and BARKSDALE, District Judge.

HAYNSWORTH, Circuit Judge:

The plaintiff in this diversity action sought the recovery of expense to which he had been put as a result of an abandoned attempt to condemn real estate he owned in South Carolina, a cause of action for which there is specific statutory provision. Additionally, he alleged a continuing trespass upon his land by the defendants, officials of Colleton County, South Carolina.

The plaintiff filed a motion for summary judgment respecting his claim for recovery of expenses and damages arising out of the condemnation proceeding, and, at the same time, indicated that he wanted to bring in additional parties defendant, apparently as to the cause of action founded upon the claimed continuing trespass. The defendants filed a motion for leave to amend to set up the Statute of Limitations as a bar to recovery of the expenses and damages arising out of the abandoned condemnation proceeding. These two motions came on to be heard together.

At the hearing, the District Judge had the plaintiff sworn as a witness and, on the basis of the testimony of the witness, decided that the plaintiff was due $1,756.50 on account of expenses incurred by him in the condemnation proceeding. The expense claim was in a much larger amount, but the Court ordered entry of a final judgment in favor of the plaintiff in the amount of $1,756.50, together with the taxable costs in this action. The District Judge did not specifically rule upon the defendants' contention that recovery of any such expenses was barred by the Statute of Limitations, nor did he specifically rule upon the plaintiff's claim for damages arising out of the alleged continuing trespass.

It is elementary, of course, that, on a motion for summary judgment, the only inquiry is to the existence of an issue of triable fact. If there is no such issue, summary judgment may be awarded, but, if the Court, at the hearing on the motion for summary judgment, is of the opinion that there are disputed issues of fact, the usual procedure is to deny the motion for summary judgment and thereafter to determine the factual issues at a plenary trial. If it appears on the motion for summary judgment that there is no triable issue with respect to a portion of the claim while there are triable issues with respect to the remainder, the Court, in its discretion, may enter a partial summary judgment, but it is not authorized to foreclose a trial of the remaining triable issues.

The only possible justification, therefore, for the Court's undertaking to dispose of the whole case on the basis of a disallowance of the plaintiff's claim to the extent to which it was disputed, or to the extent to which it was not clearly and definitely proved at the hearing on the motion for summary judgment, would be the enlightened consent of the parties. There is in the record some indication of such consent by the plaintiff speaking through an attorney. It was stated by the attorney that the plaintiff wished the judge to determine the matter, but we cannot find in the record such an unequivocal statement of an informed consent as to warrant the Court's order purporting to dispose of all issues at the conclusion...