Gray v. Marion County Lumber Co

• Citation: 100 S.C. 87,84 S.E. 410
• Decision Date: 27 February 1915
• Docket Number: (No. 9006.)
• Parties: GRAY. v. MARION COUNTY LUMBER CO.
• Court: United States State Supreme Court of South Carolina

84 S.E. 410
100 S.C. 87

GRAY.
v.
MARION COUNTY LUMBER CO.

(No. 9006.)

Supreme Court of South Carolina.

Feb. 27, 1915.

Appeal from Common Pleas Circuit Court of Marlboro County; T. H. Spain, Judge.

Action by A. A. Gray against the Marion County Lumber Company. From an order of

[84 S.E. 411]

injunction pending action and disposition of case on appeal, defendant appeals. Modified.

M. C. Woods, of Marion, for appellant.

Townsend & Rogers, of Bennettsville, for respondent.

FRASER, J. The following statement appears in the case:

"This is an action to declare all rights of defendant-appellant under a certain timber deed terminated, and to remove the cloud thereof from plaintiff's land. The cause was heard on its merits by Judge Memminger, at the spring, 1914, term of the circuit court for Marlboro county, and resulted in a decree, filed after the term had ended and his honor had left the Fourth circuit, which concluded in the following words: 'From these conclusions of law and facts, it follows that plaintiff is not entitled to the relief prayed for and that the complaint should be dismissed. It is therefore so ordered.' Within due time plaintiff gave notice of his intention to appeal to the Supreme Court from the order of Judge Memminger. In the meantime the defendant entered upon the land in question, cut out a right of way, and prepared to build a logging road there across. On an ex parte application, Judge Spain issued an order of injunction prohibiting the defendant from entering upon the land in question pending the appeal. Defendant gave notice of a motion to dissolve such order of injunction, and, after argument of counsel, Judge Spain granted an order dissolving the order of injunction upon the ground that the same had been obtained without notice. The plaintiff then applied to Judge Spain and obtained a rule to show cause, and a temporary restraining order pending the hearing of the rule, why the defendant should not be enjoined pending the determination of the case by the Supreme Court. To such rule the defendant made due return, which his honor held insufficient. He thereupon issued an order of injunction pending the action and until the Supreme Court shall have decided the main case. At this time the case on appeal from Judge Memminger's order had not been agreed upon or settled, and the return had not been filed in the Supreme or circuit court; the time for service of the proposed case having been extended by counsel. Within due time defendant gave notice...