Brookshire v. Farmers' Alliance Exch.

• Decision Date: 18 April 1905
• Citation: 51 S.E. 442,71 S.C. 451
• Parties: BROOKSHIRE v. FARMERS' ALLIANCE EXCHANGE OF SOUTH CAROLINA, Limited, et al.
• Court: South Carolina Supreme Court

51 S.E. 442

71 S.C. 451

BROOKSHIRE v. FARMERS' ALLIANCE EXCHANGE OF SOUTH CAROLINA, Limited, et al.

Supreme Court of South Carolina

April 18, 1905

Appeal from Common Pleas Circuit Court of Richland County; Gary Judge.

Action by H. E. Brookshire against the Farmers' Alliance Exchange of South Carolina, Limited, and others. From an order of reference calling in creditors, defendants appeal. Dismissed.

Hunt Hunt & Hunter and Lyles & McMahan, for appellants. Jas. S Verner and Bellinger, Townsend & Haskell, for respondent.

JONES J.

The appeal in this case is from the following order of reference "On motion of plaintiff's attorneys, after hearing counsel in opposition thereto, it is ordered that the master do forthwith advertise once in each week for three weeks for all creditors and stockholders of the defendants the Farmers' Alliance Exchange of South Carolina to come in and prove their claims before him, and that he take testimony offered before him as to said claims, and report thereon to this court with all convenient speed." From this order defendants appeal upon two grounds: (1) That the order could not be granted without notice to defendant when said cause had not been reached upon any call of the calendar. (2) Because the order granted relief to the plaintiff which was in its nature final and appropriate only after the determination of the issues joined by the pleadings. Respondent has made motion to dismiss the appeal upon the ground that the order is not appealable.

An order of reference to take testimony is ordinarily addressed to the discretion of the circuit court, and the appeal therefrom will not be entertained unless the order is assailed on jurisdictional grounds (Simms v. Phillips, 46 S.C. 149, 24 S.E. 97; Barnwell v. Marion, 56 S.C. 54, 33 S.E. 719), or operates to deny to litigant a mode of trial to which he is entitled by law ( Alston v. Limehouse, 61 S.C. 4, 39 S.E. 192; Muckenfuss v. Fishburne, 65 S.C. 574, 44 S.E. 77). Assuming, for the present, that the order is appealable under the first exception, which assails it for want of notice, we do not think the exception can be sustained. The facts in this connection stated in the "case" are as follows: "At the spring term, 1904, court of common pleas for Richland county, the case stood on calendar 2 for trial as No. 131. On the 22d day of April, 1904, the court was engaged in the trial of causes on calendar 1, and had been so continuously since the opening of court, except that cases of calendar 2 had been called up at intervals. On the said 22d day of April, 1904, Messrs. Lyles & McMahan, two of the attorneys for the defendant, being present in court, having, after a motion, obtained an order for a nonsuit in a case which had been tried before the court and jury, Mr. James S. Verner, of the counsel for the plaintiff, arose, and addressed the court, asking for an order in this cause. Objection was made by Mr. Lyles upon the ground that the defendant had received no notice of any such application; that the said cause had not been reached in any call of calendar 2; that Messrs. Hunt, Hunt & Hunter, the leading counsel for the defendants, were not present in the court, and had no intimation of the purpose of counsel for plaintiff to apply for said order." From this it appears that the case was on calendar 2 for trial, and subject to be called at intervals during the progress of the Court. It was therefore not necessary to give any further notice of the application for order of reference. Ferguson v. Harrison, 34 S.C. 172, 13 S.E. 332.

In connection with the second exception, we consider the appealability of the order, as both questions involve a consideration of the present status of the case. The contention of the appellant is that the order appealed from is, in its nature, a final order, and appropriate only after the issues are determined; while the contention of the respondent is that the order is a mere administrative order made after the determination of the issues as to the appointment of a receiver. A brief history of the case is therefore necessary in order to determine its present status. The object of the action was to wind up the affairs of the Farmers' Alliance Exchange. On March 7, 1903, a rule to show cause why a receiver should not be appointed was made by Judge Ernest Gary, and an order issued in the meantime restraining the defendant from disposing of the funds of the said exchange. On March 21, 1903, the same judge made an order, referring the cause to the master of Richland county to...