Elrod v. Elrod, 17202
| Decision Date | 22 August 1956 |
| Docket Number | No. 17202,17202 |
| Citation | 94 S.E.2d 237,230 S.C. 109 |
| Parties | Sylvester B. ELROD, Respondent, v. Marta Teresia H. ELROD, Appellant. |
| Court | South Carolina Supreme Court |
Charles Welborn, Anderson, for appellant.
Rice & Rice, S. Eugene Haley, Anderson, for respondent.
This is an appeal by a wife from a decree granting a divorce to her husband upon the ground of desertion. There are numerous exceptions but we need only consider (1) the effect of the refusal of the Special Referee to take testimony deemed by him incompetent and his failure to find the facts, and (2) whether the Circuit Judge erred in refusing a motion to amend the answer.
Appellant, a woman in her fifties, was born in Sweden. She came to this country in 1949 and for a while resided in Rhode Island with her sister. Respondent, who is about 78 years old, is a resident of Anderson County. The parties were married in that county on December 5, 1953. They resided in the City of Anderson in a home provided by respondent until June 18, 1954, when they separated. Appellant then went to the nearby home of a sister where she remained aobut two weeks, after which she returned to Rhode Island. This action was instituted on June 20, 1955.
Respondent alleged in his complaint that on June 18, 1954, appellant, without just cause or excuse, voluntarily left the home provided by him. Appellant claimed in her answer that respondent refused to give her any money to purchase groceries and other necessities and ordered her to leave. By way of cross-action or counterclaim, she alleged that without any fault on her part she was driven from the home, and asked for separate maintenance and support.
On August 27, 1955, by consent of the parties, the case was referred to the Probate Judge of Anderson County as Special Referee to take and report the testimony, together with his findings of fact and conclusions of law.
On September 6, 1955, appellant made a motion to amend her answer and cross-complaint by alleging, among other facts, the following: That appellant contracted from respondent a social disease; that respondent had made 'lascivious and unwarranted attacks' upon the 'good name and reputation' of appellant; that he conceived a design to get rid of her and drove her from the home because she refused to engage in repulsive and unnatural sexual acts; and that he had sought to place his property beyond the reach of the courts by giving fraudulent mortgages.
In an order filed on October 8, 1955, the Court denied the foregoing motion, stating that most of the facts set out in the proposed amendment could be shown under appellant's general denial, and that 'in all other respects, defendant's proposed amendments are denied for the reason that same should have been set up in her answer.'
Extended references were held on October 19th and December 6, 1955. The testimony on the issues raised by the pleadings was sharply conflicting. On several occasions the Special Referee declined to permit appellant to put in the record testimony ruled inadmissible. The following from the record illustrates the position of the Referee in this respect:
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'By Mr. Welborn: I submit that it is proper--it is proper for Your Honor to let it come in and let the Circuit Judge pass on it--but rather than prolong this thing by another hearing, I would like to introduce into the record here her testimony, and then if you want to rule it out * * *
'By the Court: These cases are referred to me to take testimony and then to report my findings and conclusion of law back to the Circuit Judge--that is what it is referred to me to do as special referee.
'By Mr. Welborn: Well, it is my duty as lawyer for the defendant to have a proper record for the Court--because I have the right to appeal from this----
'By Mr. Rice: If the Court please, you have already ruled.
'By the Court: Yes, I have.'
It was the duty of the Referee to take all testimony offered even though he regarded it as inadmissible. Section 10-1409 of the 1952 Code; Leland v. Morrison, 92 S.C. 501, 75 S.E. 889; Atlantic Savings Bank of Charleston v. Rowland, 133 S.C. 1, 130...
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