Bradley v. Hullander, 20168

• Decision Date: 11 February 1976
• Docket Number: No. 20168,20168
• Citation: 222 S.E.2d 283,266 S.C. 188
• Court: South Carolina Supreme Court
• Parties: , Blue Sky L. Rep. P 71,278 John W. BRADLEY et al., Respondents, v. Paul W. HULLANDER et al., Appellants.

Page 283

222 S.E.2d 283

266 S.C. 188, Blue Sky L. Rep. P 71,278

John W. BRADLEY et al., Respondents, v. Paul W. HULLANDER et al., Appellants.

No. 20168.

Supreme Court of South Carolina.

Feb. 11, 1976.

William R. Hare, of Hemphill, Hemphill & Hare, Chester, and John C. Hayes, of Hayes, Brunson & Gatlin, Rock Hill, for appellants.

David A. White, of Roddy, Sumwalt & Carpenter, Rock Hill, for respondents.

LITTLEJOHN, Justice:

This litigation grows out of a written stock purchase agreement, dated August 18, 1974, whereby the plaintiffs (Buyers) contracted to purchase from the defendants, Paul W. Hullander and Vivian Hullander (Sellers), all of the stock of 'Paul's Pontiac-Buick Co., Inc.,' which corporation owns and operates the Pontiac-Buick dealership in the town of Chester.

By an amended complaint, dated January 2, 1975, the Buyers bring this action against the Sellers and against Glen Covey Associates, Inc., brokers for the Sellers. Three causes of action are set forth.

The Buyers' first cause of action, against Sellers only, is founded upon the Uniform Securities Act, § 62--1 et seq., Code of Laws of South Carolina (1962). It alleges misrepresentations as to the worth of the corporation by the Sellers. Section 62--309 provides that '(a)ny person who: . . . (2) offers or sells a security by means of any untrue statement of a material fact . . . is liable to the person buying the security from him, who may sue either at law or in equity to recover the consideration paid . . ..'

The second cause of action is directed toward the broker, Glen Covey Associates, Inc., only. It seeks relief against the broker if the brokerage fee alleged to have been received is not collectible from the Sellers.

The third cause of action is directed against the Sellers, only, and alleges that they made false and fraudulent misrepresentations and that the Buyers are entitled to full rescission of the agreement, plus actual and punitive damages. It is a common law action based on fraud and deceit.

To this complaint, the Sellers have interposed a demurrer as follows:

'1. That there is a defect of parties, as appears upon the face of the Complaint in that the causes of action so united do not affect all of the parties to the action in that the Defendant, Glen Covey Associates, Inc., is not affected by the first and third causes of action.

'2. That the causes of action stated in the Complaint have been improperly united in that the first and third causes of action are inconsistent with each other and occupy inconsistent positions in relation to the facts which form the basis of their respective remedies in that one cause excludes the other as alleged in the Complaint.'

The demurrer came to be heard before the Honorable Robert W. Hayes, presiding judge. He overruled the demurrer by his order dated February 8, 1975. That order did not find that 'the ends of justice will be subserved by proceeding with the trial,' nor direct that the trial proceed to judgment notwithstanding an appeal, as it might under the provisions of § 7--422 of the Code.

On February 17, 1975, the Sellers gave notice of intention to appeal to the Supreme Court from the order.

Thereafter, on February 26, counsel for the Buyers served notice of a motion before Judge Hayes to require that the action proceed to trial pursuant to § 7--422 of our Code, notwithstanding the appeal to the Supreme Court.

Thereafter, on March 8, 1975, counsel for the Buyers served notice of a second motion to vacate the order of the court dated February 8, 1975, then on appeal, and to substitute an attached proposed order allowing a second amended complaint, which was also attached to the notice of motion.

After a hearing, the judge granted both the motion of February 26 and the motion of March 8, in an order dated March 27, 1975. This order allowed the Buyers to proceed on the second amended complaint and directed that the case proceed to trial on the first cause of action as contemplated by § 7--422, notwithstanding the pending appeal.

On April 4, 1975, counsel for the Sellers gave notice of intention to appeal the order of March 27, 1975. The order of March 27, 1975, was superseded by a justice of this court on April 9, 1975.

The Sellers' appeal from both the order of February 8, 1975, and the order of March 27, 1975, is now before this Court for a determination. Glen Covey Associates, Inc. has not appealed.

The appellants allege error and submit three questions for our determination, as follows:

1. 'Did the Trial Judge err in overruling Appellants' Demurrer as there is a defect of parties appearing upon the face of the Complaint and all Defendants are not affected by the several causes of action?'

2. 'Did the Trial Judge err in overruling Appellants' Demurrer as the causes of action stated in the Complaint are improperly united, inconsistent in the relief requested and mutually exclusive?'

3. 'Were proceedings in the Circuit Court stayed upon Appellants' giving notice of intention to appeal from Judge Hayes' February 8, 1975, Order, and does such stay preclude further motions being heard and Orders issued by the Trial Judge?'

A ruling upon the third question will simplify the treatment of the first two. The appeal from the ruling of the order of February 8, 1975, stayed all further proceedings in the circuit court pertaining to this ruling. After the notice of intention to appeal from the order of February 8 was served, the circuit court lost jurisdiction as to this order and the motions, which the Buyers attempted to pursue, should not have been heard without the permission of ...