Davis-McGee Mule Co. v. Marett

• Decision Date: 09 June 1924
• Docket Number: 11523.
• Citation: 123 S.E. 323,129 S.C. 36
• Parties: DAVIS-MCGEE MULE CO. v. MARETT, SHERIFF.
• Court: South Carolina Supreme Court

123 S.E. 323

129 S.C. 36

DAVIS-MCGEE MULE CO. v. MARETT, SHERIFF.

No. 11523.

Supreme Court of South Carolina

June 9, 1924

Appeal from Common Pleas Circuit Court of Anderson County; John S Wilson, Judge.

Action in claim and delivery by the Davis-McGee Mule Company against W. O. Marett, Sheriff. Judgment for plaintiff, and defendant appeals. Affirmed.

Cothran and Marion, JJ., dissenting.

The circuit order follows:

"This case comes before me on a motion for a new trial by plaintiff from a verdict of the jury in the following form: 'We find for defendant.' After argument of counsel, it is ordered that a new trial be granted on the ground that the verdict as rendered was defective, in that the verdict did not call for a return to the defendant of the property in dispute, and, if a return thereof cannot be had, then for the value thereof, as held in the case of Archer v. Long, 32 S.C. 171, 11 S.E. 86."

L. W Harris and J. S. Acker, both of Anderson, for appellant.

K. P Smith and Harold Dean, both of Anderson, for respondent.

WATTS J.

This is an appeal from an order of Judge Wilson granting a new trial in the case.

The exceptions are overruled and judgment affirmed. No appeal can be made except from a final judgment. Order granting new trial is appealable when based solely upon law. But in the instant case judgment is affirmed on grounds set forth by the circuit judge.

Affirmed.

GARY, C.J., and FRASER, J., concur.

COTHRAN J. (dissenting).

I think that the demurrer, the motion for nonsuit, and the motion for a directed verdict were properly overruled. They were each made upon the same grounds substantially as follows: (1) That the property being in custodia legis was not subject to an action of claim and delivery; (2) that the action was virtually against the state, which cannot be sued without its consent.

As to the first ground: The remedy was recognized in the case of Seignious v. Limehouse, 107 S.C. 545, 93 S.E. 193, although the point now raised was not presented in that case. When the statute does not prohibit the proceeding by claim and delivery, and supplies no proceeding by which the owner of property seized and claimed to have been forfeited may have an opportunity to resist the forfeiture, the remedy is open. Moore v. Ewbanks, 66 S.C. 374, 44 S.E. 971, 15 R. C. L. 417, 20 L. R. A. (N. S.) 1121 (note); 17 Ann. Cas. 302 (note); In re Massey, 56 Kan. 120, 42 P. 365.

As to the second ground: The amendment to the act of 1917, cited by appellant, by the act of 1919, set out in section 885, Cr. Law 1922, declares a forfeiture to the county, and not to the state as formerly; leaving no ground for the appellant's contention.

As to the order granting a new trial: The order was granted upon the ground that the verdict not being in the alternative was void.

In the case of Wilkins v. Willimon (S. C.) 122 S.E. 503, it is held that there is nothing in Code Civ. Proc. 1922, § 542, which requires the verdict to be in the alternative; that is, for the possession of the property or for its value stated, in case delivery cannot be had; that what the statute requires is that under certain conditions "the jury must assess the value of the property" along with their verdict for one party or the other; and that the judgment under section 600 shall conform to the facts developed.

The jury found for the defendant; the form of the verdict being simply, "We find for the defendant." The plaintiffs having taken possession of the property, if the defendant had in his answer claimed a return of the property, the verdict should have been:

" We find for the defendant the recovery of the possession of the property described in the complaint, the value of which is assessed at $_____ (no damages having

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