Trimmier v. Liles
| Decision Date | 27 July 1900 |
| Citation | 36 S.E. 652,58 S.C. 284 |
| Parties | TRIMMIER v. LILES et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Spartanburg county; G. W Gage, Judge.
Action by T. R. Trimmier, as administrator, against J. B. Liles and another. From a decree denying a part of defendant J. B Liles' counterclaim, and ordering the finding of a master in favor of plaintiff to be submitted to a jury, both plaintiff and defendants appeal. Affirmed.
J. T Johnson and Duncan & Sanders, for plaintiff. Simpson & Bomar, for defendants.
On the 13th day of February, 1883, the defendant J. B. Liles made his promissory note, due at 10 months after date, for $4,061.51, with interest from date at 10 per cent per annum payable annually, unto F. M. Trimmier, or order, and on the same day he executed unto the said F. M. Trimmier, in order to secure said note, a mortgage on a fraction of an acre of land situate in the town of Spartanburg, S. C., and whereon was located a two-story brick storehouse, occupied at that time by Reed & Liles, and a warehouse, occupied by J. B. Liles. On the ___ day of July, 1894, this action was brought. In the complaint it was alleged that F. M. Trimmier departed this life on the 17th of August, 1888, testate; that Margaret Trimmier procured letters of administration on his estate with his will annexed, and that, upon her death, the plaintiff was duly appointed administrator de bonis non cum testamento annexo of the estate of the said F. M. Trimmier, deceased; that the said J. B. Liles has not paid said debt, but "has made some payments on his said note, but the exact amount of same this plaintiff does not know"; that Henry V. Liles is made party defendant because he claims to own some interest in or lien upon the real estate mortgaged to plaintiff's testator, but no personal judgment will be demanded against him in this transaction. J. B. Liles answered, admitting that he made the promissory note in question, together with the mortgage of real estate, as alleged in plaintiff's complaint; but he avers that said note represented in all of its terms only a debt due by J. B. Liles of $1,060, and the remaining $3,000 thereof was a liability of his to said F. M. Trimmier, as his surety to the guardianship bond of J. B. Liles as the guardian of the estate of J. H. Fowler, a minor, which liability is canceled and annulled by reason of J. B. Liles having paid and discharged every part of the estate of said J. H. Fowler to the administrator of the estate of said J. H. Fowler, deceased, and that J. B. Liles has paid much, if not all, of the sum of $1,060 which said note of his to F. M. Trimmier called for. By consent, an order was passed by Judge Fraser, on October 31, 1894, by which all the issues of law and fact were referred to the master for Spartanburg, with directions to report his conclusions thereon to the court. At the reference before the master there was testimony introduced tending to show that $3,000 of the $4,060 note was to cover and protect $3,000 of the liability of the said F. M. Trimmier, deceased, as the surety on the guardianship bond of J. B. Liles as guardian of the estate of J. H. Fowler, a minor, which liability, it was proved, had been fully terminated by the payment of every dollar thereof. However, the master held that proof was not convincing to his mind that the contention of the defendant J. B. Liles was correct as to the $3,000; for he held that said $3,000 was still a subsisting part of the debt evidenced by the note for $4,060. When he came to pass upon the credits which J. B. Liles set up against the said note, he sustained sums which aggregated $1,824.05 as credits to which J. B. Liles was entitled. Plaintiff excepted to these credits. Defendant J. B. Liles excepted to the finding of the master as to the $3,000 being no liability of defendant growing out of the guardianship, but as to defendant's debt of F. M. Trimmier. When Judge Gage heard the cause he struck out the $1,175 of the credits allowed by the master, and when he came to pass on the exceptions relating to the $3,000 he declared he was unable to bring himself to a restful conclusion either to confirm or overrule. He therefore ordered that the following issue be referred for trial by a jury, and that defendant be the actor therein, to wit: Both sides to the controversy appeal from this decree.
The six exceptions of the plaintiff relate mainly to alleged errors of the circuit judge in not confirming master's finding as to the $3,000. These errors are alleged: (1)...
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