Burns v. Gower

• Decision Date: 17 June 1891
• Citation: 34 S.C. 160,13 S.E. 331
• Parties: Burns v. Gower.
• Court: South Carolina Supreme Court

13 S.E. 331

34 S.C. 160

Burns

v.Gower.

Supreme Court of South Carolina.

June 17, 1891.

Appeal prom Justice of the Peace—Questions Raised by Exceptions.

Code S. C. § 358, providing that appeals from trial justices to the circuit court shall be heard upon all the papers in the case, including testimony taken in writing on the trial, "and the grounds of exception made, " confines the circuit court, on the hearing, to the consideration of such questions only as are raised by the exceptions.

Appeal from common pleas circuit court of Greenville county; James F. Izi.ar, Judge.

Action by Amanda Burns against T. C. Gower. Judgment for plaintiff. Defendant appeals.

Shnman & MaySeld and Wells & Orr, for appellants.

Nix, Dill & Nix, for respondent.

McIver, J. The plaintiff brought this action before a trial justice to recover the value of certain articles of personal property which she alleged had unlawfully been taken from her by defendant. The defense was that the articles in question had been seized under a distress warrant issued to enforce the payment of rent in arrear of a certain dwelling-house in the city of Greenville, which defendant alleged had been leased from him by the plaintiff. But two questions seem to have been raised at the trial before the trial justice: (1) Whether the plaintiff had in fact made the agreement; (2) whether she had the power to make such a contract, she being a married woman at the time. The trial justice found, as a matter of fact, that the alleged contract was made by the plaintiff; but he held, as matter of law, that she, being a married woman, had no power to make the contract, and he therefore rendered judgment in favor mi the plaintiff. From this judgment the defendant appealed to the circuit court upon numerous grounds set out in the "case, " all of which, however, so far as this appeal is concerned, substantially make the single question whether the trial justice erred in holding that the plaintiff had no power to make the contract in question. This appeal was heard by his honor, Judge Izi.ar, upon the testimony taken by the trial justice, his report of the case, (all of which is set out in the "case, ") and the defendant's exceptions, there being no exception by either party to the finding of fact by the trial justice that the agreement for the rent of the premises was made by the plaintiff. Upon the hearing of this appeal the judge granted an order in these words: "That the finding of the trial justice be confirmed, and that the appeal be dismissed." The defendant, supposing, as he says, that the circuit judge had affirmed the findings of the trial justice, both of fact and law, gave notice of appeal to this court, upon numerous grounds set out in the record, which, however, practically make the same question raised by his appeal from the judgment of the trial justice. But, when the case was submitted to the circuit judge for settlement, he incorporated therein certain amendments, which showed that the views of the circuit judge had been entirely misapprehended by the appellant, and that the circuit judge, while holding that the contract was such a one as the plain tiff, though a married woman, was capable of making, yet, at the same time, he was satisfied that the testimony failed to show that the contract was made by the plaintiff, and for that reason only he had affirmed the judgment of the trial justice, while not concurring in the views taken by that officer. When this amendment was made, defendant applied to and obtained from this court leave to file additional exceptions, upon the ground that the case, as amended, presented different questions from those which arose out of the case as originally proposed. These additional exceptions are set out in the record, but, as they practically present only two questions, they need not be repeated here. These questions are (1) whether the circuit judge erred in reversing the finding of fact by the trial justice that the agreement for renting the premises was made by the plaintiff, and not by her husband; (2) whether the circuit judge erred in considering that question of fact at all, in the absence of any exception to such finding, or any ground of appeal from the judgment of the trial justice, raising that question.

We will consider the second question first, for, if there was error on the part of the circuit judge in considering whether the testimony was sufficient to sustain the finding of the trial justice that the agreement for renting was in fact made by the plaintiff,...