C & S Real Estate Services, Inc. v. Massengale

CourtUnited States State Supreme Court of South Carolina
Citation290 S.C. 299,350 S.E.2d 191
Decision Date22 October 1986
PartiesC & S REAL ESTATE SERVICES, INC., Respondent, v. Patricia Anne MASSENGALE, and Blazer Financial Services, Inc., of whom Patricia Anne Massengale is Appellant.

Page 191

350 S.E.2d 191
290 S.C. 299
C & S REAL ESTATE SERVICES, INC., Respondent,
v.
Patricia Anne MASSENGALE, and Blazer Financial Services,
Inc., of whom Patricia Anne Massengale is Appellant.
Supreme Court of South Carolina.
Oct. 22, 1986.

Page 192

[290 S.C. 300] Kevin Barth and Frederick K. Jones, Florence, for appellant.

Finley B. Clarke, Florence, for respondent.

ORDER

Appellant has appealed an order denying her a jury trial on all but one of six counterclaims she asserted in this mortgage foreclosure. Respondent now moves to dismiss the appeal on the ground the order is not immediately appealable. We grant the motion to dismiss.

An order denying a party a jury trial is not immediately appealable unless it deprives him of a mode of trial to which he is entitled as a matter of right. See Williford v. Downs, 265 S.C. 319, 218 S.E.2d 242 (1975); Alston v. Limehouse, 61 S.C. 1, 39 S.E. 192 (1901). We must determine whether appellant had the right to a jury trial on any of the five counterclaims which were ordered tried without a jury.

The trial judge held that two of the counterclaims were equitable in nature. Appellant clearly had no right to a jury trial on these claims. See Williford v. Downs, supra; Allen Bros. Milling Co. v. Adams, 233 S.C. 416, 105 S.E.2d 257 (1958).

The trial judge held the remaining counterclaims were legal in nature. He found, however, that three of these claims were permissive counterclaims under Rule 13(b), SCRCP, and appellant had waived a trial by jury when she asserted them in an equitable

Page 193

action. The judge ordered a jury trial only of the legal compulsory counterclaim.

Prior to the adoption of the South Carolina Rules of Civil Procedure, a defendant in a mortgage foreclosure, an action in equity, had no right to a jury trial on a legal counterclaim. [290 S.C. 301] See, e.g., Barnwell Production Credit Ass'n v. Hartzog, 231 S.C. 340, 98 S.E.2d 835 (1957); Welborn v. Cobb, 92 S.C. 384, 75 S.E. 691 (1912). Such a counterclaim could be asserted in the foreclosure action if it arose out of the same transaction; however, the counterclaim was not mandatory.

Rule 13(a), SCRCP, now requires a defendant to plead as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim. He is entitled to a jury trial on these compulsory counterclaims if legal in nature even though asserted in an equitable action. See, e.g., Amoco Oil Co. v....

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24 practice notes
  • Wells Fargo Bank, NA, v. Smith, No. 4988.
    • United States
    • Court of Appeals of South Carolina
    • August 8, 2012
    ...legal and compulsory, the defendant has the right to a jury trial on the counterclaim. C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 302, 350 S.E.2d 191, 193 (1986), modified by Johnson v. S.C. Nat'l Bank, 292 S.C. 51, 354 S.E.2d 895 (1987). “A mortgage foreclosure is an actio......
  • Wells Fargo Bank, NA v. Smith, Appellate Case No. 2009-125666
    • United States
    • Court of Appeals of South Carolina
    • June 13, 2012
    ...legal and compulsory, the defendant has the right to a jury trial on the counterclaim. C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 302, 350 S.E.2d 191, 193 (1986), modified by Johnson v. S.C. Nat'l Bank, 292 S.C. 51, 354 S.E.2d 895 (1987). "A mortgage foreclosure is an actio......
  • Johnson v. South Carolina Nat. Bank, No. 22700
    • United States
    • United States State Supreme Court of South Carolina
    • April 13, 1987
    ...compulsory, does the plaintiff have a right to a jury trial on the counterclaim? DISCUSSION In C & S Real Estate Services v. Massengale, 290 S.C. 299, 350 S.E.2d 191 (1986), this Court issued an order clarifying the procedure to be followed under Rules 13, 38 and 42, SCRCP, when a complaint......
  • Wachovia Bank v. Blackburn, Appellate Case No. 2011-203088
    • United States
    • United States State Supreme Court of South Carolina
    • February 26, 2014
    ...354 S.E.2d 895, 897 (1987) (citation omitted) (internal quotation marks omitted), modifying C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 301-02, 350 S.E.2d 191, 193 (1986); see also N.C. Fed. Sav. & Loan Ass'n v. DAV Corp., 298 S.C. 514, 517, 381 S.E.2d 903, 905 (1989) (utili......
  • Request a trial to view additional results
24 cases
  • Wells Fargo Bank, NA, v. Smith, No. 4988.
    • United States
    • Court of Appeals of South Carolina
    • August 8, 2012
    ...legal and compulsory, the defendant has the right to a jury trial on the counterclaim. C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 302, 350 S.E.2d 191, 193 (1986), modified by Johnson v. S.C. Nat'l Bank, 292 S.C. 51, 354 S.E.2d 895 (1987). “A mortgage foreclosure is an actio......
  • Wells Fargo Bank, NA v. Smith, Appellate Case No. 2009-125666
    • United States
    • Court of Appeals of South Carolina
    • June 13, 2012
    ...legal and compulsory, the defendant has the right to a jury trial on the counterclaim. C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 302, 350 S.E.2d 191, 193 (1986), modified by Johnson v. S.C. Nat'l Bank, 292 S.C. 51, 354 S.E.2d 895 (1987). "A mortgage foreclosure is an actio......
  • Johnson v. South Carolina Nat. Bank, No. 22700
    • United States
    • United States State Supreme Court of South Carolina
    • April 13, 1987
    ...compulsory, does the plaintiff have a right to a jury trial on the counterclaim? DISCUSSION In C & S Real Estate Services v. Massengale, 290 S.C. 299, 350 S.E.2d 191 (1986), this Court issued an order clarifying the procedure to be followed under Rules 13, 38 and 42, SCRCP, when a complaint......
  • Wachovia Bank v. Blackburn, Appellate Case No. 2011-203088
    • United States
    • United States State Supreme Court of South Carolina
    • February 26, 2014
    ...354 S.E.2d 895, 897 (1987) (citation omitted) (internal quotation marks omitted), modifying C & S Real Estate Servs., Inc. v. Massengale, 290 S.C. 299, 301-02, 350 S.E.2d 191, 193 (1986); see also N.C. Fed. Sav. & Loan Ass'n v. DAV Corp., 298 S.C. 514, 517, 381 S.E.2d 903, 905 (1989) (utili......
  • Request a trial to view additional results

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