Ferguson v. Harrison

• Decision Date: 17 June 1891
• Citation: 13 S.E. 332,34 S.C. 169
• Parties: Ferguson et al. v. Harrison et al.
• Court: South Carolina Supreme Court

13 S.E. 332

34 S.C. 169

Ferguson et al. v. Harrison et al.

Supreme Court of South Carolina

June 17, 1891

Appeal from common pleas circuit court of Greenville county; James Aldrich, Judge.

McIver J.

The plaintiffs, as existing creditors of the defendant John H Harrison, brought this action to set aside an alleged voluntary deed to his wife, and also certain mortgages made by the wife to the defendants Samuel E. Harrison and Richard Harrison, brothers of said John H. Harrison, under the allegation that the same were made with intent to hinder delay, and defraud the creditors of John H. Harrison. The defendants answered, denying all fraud, and alleging that the deed to the wife was made upon the understanding that she would secure the two brothers in the claims they held against her husband, and was not, in fact, without consideration, and the mortgagees demanded that their mortgages should be foreclosed. The case being at issue and on the docket for three terms, when it was called for trial, at the third term the defendants John H. Harrison and his wife moved for a continuance, upon the ground of the sickness of some of their children, though no affidavits to that effect were presented. The motion to continue was resisted by the plaintiffs, who insisted "that some progress should be made, as this was the third term on the calendar, and these defendants were destroying the value of the mortgaged premises, already scant security, by cutting, sawing, and selling off the lumber." An order of reference was then suggested by plaintiffs' attorneys. The questions involved were then stated by the respective counsel. Plaintiffs moved for an order of reference. No written notice of this motion or affidavit in support thereof was submitted, the motion being based upon what was stated in open court. The counsel for John H. and Nannie E. Harrison stated that they objected to a reference. The attorneys for Samuel E. and Richard Harrison neither consented nor objected to the order of reference, but stated that they were willing to unite with the other defendants in any course they might pursue. Judge Aldrich stated that it was such a case as was referable under the Code; that the plaintiffs were entitled to a trial, but, under the circumstances, he would not force them to an immediate trial; that he would, during the term, either try the case himself, or refer it, if these defendants did not wish to leave their children. The attorneys for John H. and Nannie E. Harrison said that their clients did not wish to come away from their children again, again urged a continuance, and refused to consent to a reference. Thereupon the judge stated that he would not continue the case, and passed an order of reference in the following words: "On hearing the pleadings in this case, it is ordered that it be referred to the master to take the testimony in this case, and report the same to the court, together with his conclusions of law and fact."

From this order defendants appeal, upon the several grounds set out in the record, which impute error to the circuit judge in granting this order, for the several reasons suggested therein, which will be hereinafter stated and considered. While there is no such statement in the record as prepared for argument here, yet the fact is conceded, in the brief presented by appellants' counsel, that respondents' counsel served on appellants a notice "that they will ask the court to sustain the order upon the ground that the same is not appealable," and hence we are at liberty, as we would not otherwise be, to consider that question.

Section 11 of the Code specifies the cases in which an appeal may be taken to this court, as well from a final judgment as an intermediate order. It is very clear that the order under consideration is not appealable under subdivision 3 of that section, for that relates to an order made in a special proceeding. It is equally clear that it does not fall under subdivision 2, for that relates to orders which must not only affect a substantial right, but must, in effect, determine the action, etc., and, as no such effect can be attributed to the order in question, it certainly cannot be appealable under that subdivision. Carlington v. Copeland, 25 S.C. 41. If, therefore, it is appealable at all, it must be under subdivision 1 of that section, which gives the right of appeal from an intermediate order "involving the merits." What is the precise meaning of the words just quoted has never, so far as we know, been distinctly determined. But in the case of Blakeley v. Frazier, 11 S.C. 122, it was held that whenever a substantial right of a party to an action, material to obtaining a judgment, is denied, this subdivision of section 11 secures the right of appeal to this court, and, as we suppose the mode of trial whether by the court, by a referee or master, or by a jury, is a matter material to obtaining a judgment, it follows that, where a party is denied the mode of trial to which he is entitled by law, and required by an order to submit to some other mode of trial, such order is appealable. While, therefore, every order of reference is not appealable, yet there are some which are. To determine, therefore, whether the order in question is appealable, it is necessary to inquire, as in Du Pont v. Du Bos, (S. C.) 11 S.E. Rep. 1073, whether any substantial, legal right of the appellants has been denied by referring all the issues in the action to the master. The first objection to the order raised by the grounds of appeal is that it was granted without previous notice that such order...