Bell v. Bell

• Citation: 87 S.E. 540,103 S.C. 95
• Decision Date: 31 December 1915
• Docket Number: 9251.
• Parties: BELL v. BELL ET AL.
• Court: United States State Supreme Court of South Carolina

87 S.E. 540

103 S.C. 95

BELL v. BELL ET AL.

No. 9251.

Supreme Court of South Carolina

December 31, 1915

Appeal from Common Pleas Circuit Court of Richland County; C.J Ramage, Special Judge.

Action by Richard Bell against Alice Bell and Isaac Lakin. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

Gary C.J., dissenting.

J. B McLauchlin, of Columbia, for appellant.

Elliott & Herbert and W. H. Cobb, all of Columbia, for respondents.

GAGE J.

This appeal follows upon the heels of 99 S.C. 501, 84 S.E. 369. The jury trial there directed resulted in favor of the defendant Lakin, and the plaintiff, Bell, now appeals from the judgment.

There are six exceptions, four of which charge error in the admission of parol testimony, and two of which charge error in the charge of the court. But the appellant has devoted to the exceptions but 3 pages in a not model argument in style and content of 24 pages.

1. The burden of the argument is directed to the postulate that the issue of notice to Lakin, directed by us to be submitted to a jury, was concluded by the master's finding that Lakin did have notice, and by a failure of the circuit court to consider that issue. The defendant Lakin pleaded want of notice, and excepted to the master's conclusion that he had notice, and thereby made the issue before the circuit court. The defendant Lakin, it is true, did not seek to sustain here the decree of the circuit judge upon the additional ground that Lakin had no notice of Bell's claim of title. Nevertheless this court did consider the issue of notice to Lakin, and did conclude with the plaintiff and with the master that Lakin had notice. That question was not argued here by the appellant. After the judgment of this court had been filed, the attorneys for Lakin made a formal motion before this court to reopen the case so far as the issue of notice to Lakin was concerned, and upon the ground that material parts of the defendant's testimony thereabout had been omitted from the case. See 99 S.C. 501, 84 S.E. 369. It so turned out that there had been unintentional, but material, omissions of testimony, whereupon this court ordered a rehearing, not here, but before a jury in the circuit court. At the argument of the motion before us the attorney for Lakin was present, together with additional counsel for Bell; and it was not then suggested even that the issue of notice had been aforetime adjudged by the master, and was therefore out of the case. It was assumed on all hands, so we understood, that if this court had decided the issue of notice on an imperfect record, the record ought to be corrected and, of course, a new conclusion made from the new evidence. It was not until the jury had found against Lakin on the issue of notice that it was suggested to us that there was no such issue in the case. We are clearly of the opinion that the time, and the only time, to have made that issue of law was when the attorneys for Lakin asked specifically that the issue of notice be retried upon the true testimony which had been developed.

2. We have examined with care the testimony presented to the jury, and upon which the jury found for the defendant. There were four chief witnesses. Mr. McLaughlin against Mr. Herbert, and Richard Bell against Isaac Lakin. The two first named are members of the Richland bar; the two last named are colored men. Their testimony makes a sharp and unmixed issue of credibility, upon which we are relieved to have a jury pass; and we would not disturb the verdict had the jury been guided by correct instructions.

3. Now to the exceptions. Those first four which challenge the admission of testimony refer alone to testimony by Alice Bell. The answer first excepted to was favorable to Richard Bell; it was therefore not hurtful to him. The two answers in the testimony next excepted to were irrelevant to the issue of notice; but no inference of the lack of notice was deducible from them, and no other inference hostile to Richard Bell's claim. The fourth answer excepted to was that of Alice, wherein she said her husband had never claimed any interest in the property to her knowledge. The proximate issue submitted was, did Richard Bell give Lakin notice of his title? and did not Bell claim the property? If it should be established that Bell never claimed any interest, the inference might be...