E.A. Beall Co. v. Weston

• Decision Date: 05 October 1909
• Citation: 65 S.E. 823,83 S.C. 491
• Parties: E. A. BEALL CO. v. WESTON et al. (two cases).
• Court: South Carolina Supreme Court

65 S.E. 823

83 S.C. 491

E. A. BEALL CO. v. WESTON et al.(two cases).

Supreme Court of South Carolina

October 5, 1909

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

Mortgage foreclosure actions by the E. A. Beall Company against Julian B. Weston, Francis H. Weston, William Weston, and others, and by the E. A. Beall Company against George B. Weston, the two defendants last named above, and others.From an order vacating a decree of foreclosure and sale, plaintiff and such last-named defendants appeal.Reversed, and remanded for further proceedings.

W. T Aycock, for appellantsE. A. Beall Co. and F. H. Weston.D C. Ray, for appellantWm. W. Weston.Green & Green, for respondents Weston.

JONES C.J.

The actions above named were separately brought to foreclose mortgages executed to plaintiff by Julian B. Weston in the first case, and George B. Weston in the second case, covering the "right, title, and interest" of each defendant in a tract of land in Richland county known as the "Elm Savannah plantation."The original defendants, Julian B Weston and George B. Weston, and the appellantsJohn A. Weston, Amy A. Weston, and W. Keith Weston, afterwards made defendants, executed a mortgage on the premises to William T. Aycock, who assigned to defendantFrancis H. Weston.Other defendants were made parties, who claimed judgment liens upon the premises.On August 12, 1907, by consent of all who were then parties to the action, Judge Ernest Gary granted an order referring all issues of law and fact to the master.At a reference under this order the notes and mortgages of plaintiff, the bond and mortgage of defendantFrancis H. Weston, and the judgments of other defendants were established.Thereafter, on October 26, 1907, on motion of counsel for defendantsJulian B. Weston and George B. Weston, the master ordered an amendment of the summons and complaint, making the appellantsJohn A. Weston, Amy A. Weston, and W. Keith Westonpartiesdefendant, and by inserting in the complaint another paragraph, alleging that such defendants"have an interest in the real estate covered by the mortgage of the defendantFrancis H. Weston and are necessary parties to a complete determination of all the rights of the parties to the said action."The amendment was accordingly made, and copies of the summons and complaint so amended were served upon appellants, who failed to appear and answer.The master thereafter made his report, and Judge Klugh, on December 18, 1907, made his decree, in pursuance of which the real estate described in the complaint was sold to defendantWilliam W. Weston for $3,000; he being the highest and last bidder.William W. Weston refusing to comply with the terms of the sale, on the ground that John A., Annie A., and W. Keith Weston were not bound by the decree of Judge Klugh, because the answer of the defendantFrancis H. Weston, setting up his bond and mortgage, was not served on them, and because the relief granted in the cause was beyond the allegations of the complaint, was ruled by Judge Ernest Gary, who, after hearing, adjudged the return of William W. Weston insufficient, and ordered him to comply with the terms of sale.Notice of appeal was given by attorneys for John A., Annie A., and W. Keith Weston, and for William W. Weston.William W. Weston abandoned his appeal unconditionally, and John A., Annie A., and W. Keith Weston abandoned their appeal from Judge Gary's order, under agreement reserving the right to raise all questions on this appeal as to the validity and regularity of the sale of their interest which they might have raised upon an appeal from the order of Judge Gary.Thereafter respondents in this appeal moved before Judge Wilson to vacate the decree of Judge Klugh and the sale thereunder, in so far as the same affects respondents, upon the grounds (1) that the court was without power to refer the cause to the master without the consent of all parties; (2) that the master had no power to allow the amendment to the summons and complaint, and to bring in new parties; (3) that the relief granted was beyond the scope of the complaint, and that the answer of defendant Weston asked no affirmative relief against the appellant.Judge Wilson vacated the judgment and sale upon said grounds, in so far as the interests of respondents were affected, and the plaintiff and defendantsFrancis H. Weston and William W. Weston now appeal from the order of Judge Wilson.

1.There was error in holding that Judge Gary was without jurisdiction to grant the order of reference.Section 292 of the Code of Civil Procedure of 1902 authorizes a reference in any case upon the written consent of the parties.Such consent was given in this case by all the parties then before the court.Such an order, by a court having complete jurisdiction of the cause and parties before it, could not be vitiated merely because in the progress of the cause it becomes proper or necessary to bring in other parties.Moreover, the cause was one in equity, involving the establishment of a number of claims and the amounts due thereon after all proper credits, and the establishment of liens upon the property and their respective priorities.Under section 293 of the Code of Civil Procedure of 1902the court may order a reference without consent where the trial involves a long account on either side, or where the taking of an account shall be necessary for the information of the court.The issues were such as to involve the "taking of an account" of claims and credits thereon, and to authorize a compulsory reference of issues under section 293.Ferguson v. Harrison,34 S.C. 169, 13 S.E. 332;Green v. McCarter,64 S.C. 293, 42 S.E. 157;Windham v. Howell,78 S.C. 196, 59 S.E. 852.

2.The court also erred in holding that the master had no authority to order an amendment to the complaint and the bringing of the new parties.Section 294 of the Code of Civil Procedure of...