Dent v. Bolar

• Decision Date: 12 June 1923
• Docket Number: 11252.
• Citation: 118 S.E. 26,125 S.C. 63
• Parties: DENT ET AL. v. BOLAR.
• Court: South Carolina Supreme Court

118 S.E. 26

125 S.C. 63

DENT ET AL. v. BOLAR.

No. 11252.

Supreme Court of South Carolina

June 12, 1923

Appeal from Common Pleas Circuit Court of Richland County; T. J Mauldin, Judge.

Action by W. K. Dent and others against Rebecca Bolar. Judgment for plaintiffs, and defendant appeals. Reversed.

N. J Frederick, of Columbia, for appellant.

Thomas & Lumpkin, of Columbia, for respondents.

FRASER J.

The judgment appealed from sets out the facts and reads:

"This cause comes before me in the form of a petition which prays that the defendant above named be ejected from a certain tract of land in this county, and that she and others claiming title to the said tract be forever enjoined from re-entering upon the same. The tract of land in question comprises some 90 acres, known as the 'Adams tract,' situated about 7 miles northeast of the city of Columbia. It appears that in December, 1890, John B. Dent acquired the tract of land in question; that he died in the year 1899, and that the petitioners are the sole heirs at law and distributees of the said John B. Dent, and tenants in common of the aforesaid tract.

During the month of March, 1919, one Rose Whittaker, mother of the defendant herein, brought an action in the county court, in which, among other things, she prayed that the court decree and order the petitioners herein, defendants in that action, to make a conveyance of the premises in question, and that a certain note and mortgage alleged to have been given by Rose Whittaker to John B. Dent, deceased be marked paid, canceled, and delivered up. The defendants petitioners here, set up their title to the said premises, and upon trial of the cause a verdict was rendered by the jury awarding the possession and title in the premises to the defendants, who are the petitioners herein. Thereupon Judge Whaley, of the county court, granted a motion for a new trial. Upon the call of the case in the county court evidence was introduced to show that the value of the land in question was in excess of $3,000, and Judge Whaley by formal order dismissed the case for want of jurisdiction.

In the month of October, 1919, an action was begun in the court of common pleas for Richland county between the same parties for the same purposes and involving the same tract of land. Some time during the year 1920 Rose Whittaker died, and one of her children remained on the land until December of that year, when she removed, and another daughter, Rebecca Bolar, the defendant herein, moved upon the said land. In the month of January, 1921, the petitioners herein gave Bolar notice to quit. This she refused to do, and thereupon the matter was turned over to Magistrate Wilson, of Richland county, who after proper notice and hearing of the cause issued his order ejecting Rebecca Bolar from the said land. Bolar then filed bond and appealed the case to the circuit court, where Judge Townsend, after hearing, issued his order reversing the judgment of the magistrate, for the reason that an action was then pending in the court of common pleas, and because the question of title had been raised. At this hearing it was represented to the presiding judge that no effort was being made by the defendant and other heirs of Rose Whittaker to have an administrator appointed and proper substitution made. In his order Judge Townsend mentions the fact that counsel for Rebecca Bolar represents that such action will be taken at once, in order to expedite the trial of the cause.

Counsel for the petitioners herein now represent to me that repeated efforts were made by them to bring the case to trial, and finally they served upon the defendant's counsel a notice of a motion to dismiss the case for want of prosecution. In the record there appears an order, signed by Judge Bowman, bearing the consent of counsel for the defendants herein, dismissing the case for want of prosecution. The petitioners now bring this petition, praying for an order ejecting the defendant, Rebecca Bolar, and for an injunction against her reentry, and further pray that they be forthwith put into possession. The defendant by counsel answers the petition, setting up title in herself and other heirs of Rose Whittaker. At the time the petition was served there was also served an order of Judge Peurifoy requiring the defendant to show cause why she should not quit, vacate, and remove from the tract of land

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