Bank of Williston v. Alderman

• Decision Date: 10 February 1917
• Docket Number: 9612.
• Citation: 91 S.E. 296,106 S.C. 386
• Parties: BANK OF WILLISTON v. ALDERMAN ET AL.
• Court: South Carolina Supreme Court

91 S.E. 296

106 S.C. 386

BANK OF WILLISTON v. ALDERMAN ET AL.

No. 9612.

Supreme Court of South Carolina

February 10, 1917

Appeal from Common Pleas Circuit Court of Aiken County; H. F. Rice Judge.

Action by the Bank of Williston against Owen Alderman and another. Defendants appeal from an order of reference granted upon plaintiff's motion, on the ground that he is entitled to a jury trial. Appeal dismissed.

Croft & Croft, of Aiken, for appellants.

Hendersons of Aiken, for respondent.

GARY C.J.

This is an appeal from an order of reference, on the ground that the appellant was entitled to a trial by jury.

The second paragraph of the complaint is as follows:

"That on the 24th day of July, 1915, the defendant, Owen Alderman, presented to the plaintiff, at its banking house, a certain check or draft, or warrant, drawn by the superintendent of the Atlantic Coast Line Relief Department upon the treasurer of the Atlantic Coast Line Railroad Company, at Wilmington, N. C., in favor of Ina E. Alderman for the sum of fifteen dollars ($15.00). That said draft bore certificate number 52820 and had been duly indorsed by Ina E. Alderman and thereby assigned and transferred unto the bearer thereof, who was the said defendant, Owen Alderman. That upon the presentation of said draft, the plaintiff, acting through its cashier, through error and mistake, mistook the certificate number 52820 for the amount of the draft, and considered that the said draft was for the sum of five hundred and twenty-eight and 20/100 dollars ($528.20), and forthwith and immediately paid in good and lawful currency of the United States of America, unto Owen Alderman, for said draft, the sum of five hundred and twenty-eight and 20/100 dollars ($528.20), instead of paying him the amount of the draft, which was fifteen dollars ($15.00)."

The complaint likewise alleges that the defendant Alderman, although a demand was made upon him, refused to return said fund, well knowing that it was not his property, and thereby committed a fraud upon the rights of the plaintiff; that $290 of the fund so received was deposited by the defendant Alderman in the defendant First National Bank of Aiken, and that he has converted the other portion of the fund to his own use; that the defendant Alderman is insolvent, and it is necessary for the protection of the plaintiff's rights that he be enjoined, pendente lite, from disposing of so much of the fund as is now on deposit in the First National Bank of Aiken.

The defendant denied each and every allegation of the complaint, except those specifically admitted. He admitted the corporate existence of the banks, and so much of paragraph 2 as alleges that on or about the 24th of July, 1915, he presented to the plaintiff a certain check, draft, or warrant of the Atlantic Coast Line Relief Department for the sum of $15; but that he does not know the number of the certificate, as alleged in the complaint. He further admits that the said draft was assigned to him by the original payee, and that he was the lawful owner thereof.

The defendant Alderman made a motion to dissolve the temporary order of injunction, which had been granted. The motion was refused, and there is no appeal from that order.

The plaintiff made a motion for an order of reference, which was granted, and Alderman appealed, on the ground that he was entitled to a trial by jury.

Section 312 of the Code provides that an issue of fact for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless a jury trial be waived.

In the case of Ex parte Landrum, 69 S.C. 136, 48 S.E. 47, there was a proceeding in the probate court to fix the amount of the fees to which the attorneys representing the executor were entitled, and to determine the fund out of which they should be paid. The Supreme Court said:

"This renders it necessary to invoke the aid of the court in the exercise of its chancery powers. The facts are therefore reviewable by this court."

That case is cited with approval in Mobley Co. v. McLucas, 99 S.C. 99, 82 S.E. 986.

If the plaintiff had based his action simply upon the ground of mistake, the defendant would have been entitled to a trial by jury, as that would have been an action for the recovery of money only. But there are other allegations appropriate to an action seeking the aid of the court in the exercise of its chancery powers. There are allegations to the effect that the defendant Alderman is attempting to deprive the plaintiff of its rights by fraudulently converting the fund to his own use.

The appellant's attorneys cite the case of Campbell v. Kinlock, 9 Rich. 300, to sustain the proposition that:

"Mere silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation, and therefore, in the absence of

...