Greenville County v. Stover

• Decision Date: 07 November 1939
• Docket Number: 14962.
• Citation: 5 S.E.2d 461,192 S.C. 31
• Parties: GREENVILLE COUNTY v. STOVER et al. SAME v. BOWEN et al.
• Court: South Carolina Supreme Court

5 S.E.2d 461

192 S.C. 31

GREENVILLE COUNTY v. STOVER et al.

SAME v. BOWEN et al.

No. 14962.

Supreme Court of South Carolina

November 7, 1939

Wilton H. Earle, of Greenville, for appellant.

Stephen Nettles and C. S. Bowen, both of Greenville, for respondents.

BONHAM Justice.

These appeals are predicated upon the same facts which led to the litigation. They were heard together on Circuit and are submitted to this Court upon similar transcripts of record and briefs. It is conceded that the determination of the issues of one appeal will determine the issues of the appeal in the other. Therefore, we will consider the questions arising in the appeal of the case of Greenville County v. W. E. Bowen and Bertha C. Bowen, and that decision will be decisive of the appeal in the case of Greenville County v. Dakyns B. Stover and Edith L. Stover.

Greenville County filed an action against W. E. Bowen and Bertha C Bowen in which it is alleged that W. E. Bowen, in an ex parte capacity, he being one of the County Attorneys for Greenville County, secured an order commanding the Treasurer of Greenville County to pay W.E.

Bowen on account, the sum of $3,000 for services rendered Greenville County; that the said order was secured without notice and by making false statements; that the order was void and had been so declared by the Supreme Court; that the money was obtained without warrant of law, and while said W E. Bowen held a trust position in Greenville County; and that the said W. E. Bowen was guilty of fraud as set out in paragraph IV of the complaint. That Mrs. Bertha C. Bowen was made party defendant in the action because W. E. Bowen turned over to her the money received by him under the said void order.

The defendants gave notice that they would move before Judge Oxner, the resident Judge, for an order requiring plaintiff to elect on which cause of action it would go to trial, one in assumpsit for money had and received, a cause of action arising ex contractu, or a cause of action for fraud and deceit, a cause of action arising ex delicto.

Judge Oxner disqualified himself from hearing the motion and referred it to Judge Featherstone of the Eighth Circuit. When it came before him for hearing, counsel for plaintiff advised the Court that he construed the complaint to state a cause of action ex contractu. Whereupon His Honor ordered that it be so construed and the motion dismissed. From this order there is no appeal.

Thereupon counsel for defendants gave notice of a motion before Honorable G. B. Greene, Judge of the Tenth Judicial Circuit, to strike from paragraph three of the complaint the words, "and has been so determined by the Supreme Court of this State":

"2. Striking all of paragraph four of the complaint upon the respective grounds:

"(a) All of said paragraph through specification (e) thereof and beginning with the phrase 'and plaintiff, Greenville County, further alleges, etc.', through the remaining portion of paragraph four, that the same is irrelevant appropriate to an action only ex delicto, states mere conclusions, and constitutes no ground of fraud;

"(b) Beginning with the phrase 'because of all the facts', etc., and ending with 'without warrant of law' in said paragraph, that same is redundant, and is a mere conclusion.

"3. Failing to succeed in striking paragraph four of said complaint in its entirety, then striking the following portions of said paragraph:

"(a) All of subdivision (a) of said paragraph on the ground that same is res adjudicata, and constitutes no ground of fraud;

"(b) All of subdivision (b) of said paragraph on the ground that same is irrelevant, dealing solely with a question of law and not of fact, was a matter about which the Court was better informed than the defendant W. E. Bowen, and constitutes no ground of fraud;

"(c) All of subdivision (c) of said paragraph on the grounds that the same is irrelevant, was a question of law and not of fact about which the Court was better informed than the defendant W. E. Bowen, is a mere conclusion and constitutes no ground of fraud; and that portion thereof which reads as follows: 'and the Supreme Court has recently judicially declared that said Act did require such notice', upon the further ground that same is a matter of law and not of fact; is a mere conclusion, and is prejudicial;

"(d) All of subdivision (d) of said paragraph on the ground that same is res adjudicata, and constitutes no ground of fraud;

"(e) All of subdivision (e) of said paragraph on the ground that same is irrelevant, a mere conclusion, and constitutes no ground of fraud;

"(f) All that portion of said paragraph beginning with 'because of all the above facts', and ending with 'without warrant of law', on the ground that the same is redundant; and

"(g) All the remaining portion of said paragraph four on the ground that same is irrelevant, appropriate solely to an action ex delicto, and constitutes no ground of fraud.

"4. Requiring plaintiff to make the complaint more definite and certain by setting forth in paragraph three thereof in what particulars 'the order of the Judge of the Seventh Circuit, on which said W. E. Bowen secured said sum of money, was, and is void'.

"5. Failing in the motion to strike subdivisions (a) and (d) of paragraph four of said complaint, then requiring plaintiff to make the complaint more definite and certain in the following particulars:

"(a) By alleging in said subdivision (a) what misstatement was made with reference to the Judge of the Thirteenth Circuit being beyond the same; and

"(b) By alleging specifically in said subdivision (d) what statements were made to the Judge therein referred...