Barrett v. Moise
| Decision Date | 25 September 1901 |
| Citation | 39 S.E. 755,61 S.C. 569 |
| Parties | BARRETT v. MOISE et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Sumter county; Townsend Judge.
Action in partition by Little Dora Barrett, by Penelope V. Freeman, her guardian ad litem, against Marion Moise, Henry D. Barrett, and others. From judgment for defendants, plaintiff appeals. Affirmed.
A. B Stuckey, for appellant.
Lee & Moise, for appellees.
The plaintiff brought this action against the defendants for the partition of a certain tract of land described in the complaint, alleging that she was entitled to an undivided one-tenth interest in the said land; that the defendants are entitled to the remaining nine-tenths in the proportions set out in the complaint. The defendants answered, denying that the plaintiff has any interest whatsoever in the said land and alleging that they are the absolute owners in fee simple of the said land; and they go on to allege that they acquired their title under an order made by the court of equity for the sale of said land, in a case wherein V. C. Barrett and Pauline B. Barrett were plaintiffs, and John K. Barrett and others were defendants. The issue of title thus raised by the pleadings came on for trial before his honor Judge Townsend and a jury, and, a verdict in favor of the defendants having been found, judgment was entered thereon. From this judgment the plaintiff appeals upon the several exceptions set out in the record.
The first five exceptions, not being taken in conformity to Rule 5 of this court (35 S.E. v.), might well be disregarded, for they simply impute error to the circuit judge in refusing to charge certain requests submitted by plaintiff, without setting forth in these exceptions what were the requests and, what is more important, none of them "contain a statement of the proposition of law or fact which it is desired to review," as required by the rule referred to. The sixth exception is open to the same objection, for although that exception does contain a copy of the defendants' third request, which it is claimed that the circuit judge erred in charging, yet it does not contain any distinct proposition of law or fact which appellant claims to have been violated by the charge. The eighth exception, which consists of nothing more than an extract from the charge of the circuit judge, and has so often been held not to be sufficient as not to need the citation of any authority, might also well be disregarded. The seventh exception, however, may by a liberal construction of its terms be regarded as sufficient to raise the question whether the circuit judge erred in holding that the fact that the late Judge Fraser granted the order for the appointment of a guardian ad litem for the plaintiff in the case under which the land was ordered to be sold, and was sold, afforded a presumption that "everything was regular up to that appointment." So, also, the ninth exception, by a like liberal construction, may possibly be regarded as sufficient to raise the question whether the circuit judge erred in not instructing the jury to bring in a verdict for the plaintiff, under the facts disclosed by the record which had been offered in evidence. While this court is always reluctant to decide a case upon, technical grounds, yet in this case we would be less reluctant to do so, because from the "case," as prepared for argument here, it is conceded that the plaintiff's name does appear as a party to the action of Barrett v. Barrett, under which the sale of the land in question was made through which defendants claim; and it also there appears that the land was sold for a full and faire price, and that the share of the plaintiff in the proceeds of such sale was received and receipted for by her general guardian, who was her own father, and hence the plaintiff has no just ground of complaint. For, also, though it is stated in the argument of counsel for appellant "that the property in question was...
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Byrnes v. Butte Brewing Co.
...that in that particular case the incompetency of testimony as against infant parties could not be waived by their counsel Barrett v. Moise, 61 S.C. 569, 39 S.E. 755, was also an action in partition. The court said: "Still, as the rights of a minor are involved, we will not decline to consid......
- Huntley v. Welsh