Ex parte Mercer

• Decision Date: 31 October 1924
• Docket Number: 11594.
• Citation: 125 S.E. 33,129 S.C. 531
• Parties: EX PARTE MERCER. v. MERRITT. DOSCHER
• Court: South Carolina Supreme Court

125 S.E. 33

129 S.C. 531

EX PARTE MERCER.

DOSCHER v. MERRITT.

No. 11594.

Supreme Court of South Carolina

October 31, 1924

Appeal from Common Pleas Circuit Court of Charleston County; R. W Memminger, Judge.

Action by Freda C. Doscher, administratrix d. b. n. c. t. a. of the estate of A. F. Doscher against C. D. Merritt, in which Samuel Mercer petitioned for order allowing him to intervene. From order vacating order allowing him to intervene petitioner appeals. Affirmed.

T. St Mark Sasportas, of Charleston, for appellant.

Miller Huger, Wilbur & Miller, of Charleston, for respondent.

HENDERSON A. A. J.

On the 2d day of March, 1912, the defendant, C. D. Merritt, entered into an agreement with the petitioner, Samuel Mercer, by which the former agreed to sell to the latter a lot of land in Charleston, for an agreed consideration which the plaintiff was to pay in installments. This contract of sale has, however, never been recorded. Mercer has since said date paid most, if not all, of the agreed purchase price, and has built a house on the lot in question. On the 31st day of October, 1917, Merritt executed and delivered a mortgage covering the house and lot in question to Matilda Doscher, executrix of the estate of A. F. Doscher. Upon the death of Matilda Doscher, Freda C. Doscher was duly appointed administratrix c. t. a. of the Doscher estate, and on the 20th of January, 1923, she commenced a proceeding in the court of common pleas for Charleston county to foreclose said mortgage. Merritt, as the mortgagor, was the sole party defendant. The foreclosure action resulted in an order of sale, which sale was duly had; Merritt, the defendant, being the purchaser. He, however, failed to comply with his bid, and before a second sale could be had the petitioner herein, Mercer, applied to a circuit judge for an order allowing him to intervene.

The application to be allowed to intervene was based upon a petition and affidavits alone, and no notice was given to Freda C. Doscher of the application. The circuit judge in an order executed on the 5th day of June, 1923, upon the showing set out, passed an order allowing the intervention, providing that Mercer be made a party defendant, and enjoining the resale of the property until Mercer's rights could be determined by the court. Thereafter the plaintiff, Freda C. Doscher, by her attorney, made a motion before the same circuit judge (Hon. R. W. Memminger), supported by additional affidavits, setting out the plaintiff's side of the controversy, and asked that the original order of June 5th, allowing Mercer to intervene, be vacated. After hearing counsel upon this motion the judge, on June 13, 1923, passed an order, which reads simply "Motion granted."

The present appeal is from the order of June 13, 1923, which vacated the earlier order allowing the intervention. The effect of these two orders is that the circuit judge upon a mere ex parte showing, and without notice to the plaintiff, first granted the intervention sought by the petitioner; later upon the plaintiff, whose right to do so is unquestioned, coming in and presenting her side of the controversy, and, upon the circuit judge considering the whole proposition with the contention of both parties before him, he then determined that the intervention should not be allowed, and that the sale of the property should not be enjoined. He then vacated his former order, which leaves the matter in the same position as if the former order had never been granted. Hence, the present question is whether, under the circumstances, the circuit judge erred in not allowing Mercer's petition to be allowed to intervene herein.

A petition to intervene in a pending action, and especially in one that has come to judgment, is not to be granted by the court to which it is presented as a matter of absolute right. The granting or refusal of the petition depends upon the exercise of the sound discretion of the court. Coleman v Heller, 13 S.C. 491; Hellams v. Prior, 64 S.C. 543, 43 S.E. 25; Marion County Lumber Corp. v. Whipple, 118 S.C. 90, 110 S.E. 70; Murray Drug Co....