Greenwood Lumber Co. v. Cromer

• Decision Date: 07 June 1954
• Docket Number: No. 16878,16878
• Citation: 225 S.C. 375,82 S.E.2d 527
• Court: South Carolina Supreme Court
• Parties: GREENWOOD LUMBER CO. et al. v. CROMER et ux.

Page 527

82 S.E.2d 527

225 S.C. 375

GREENWOOD LUMBER CO. et al. v. CROMER et ux.

No. 16878.

Supreme Court of South Carolina.

June 7, 1954.

The following is the order of Judge Bellinger in the court below.

This matter comes before me on motion of the plaintiffs for a general order of reference and motion of the defendant, Margaret M. Cromer, for an order framing issues in equity. The two motions were argued together.

The cause being in equity is triable by the Court or a referee unless issues are framed for trial by a jury under Section 10-1057 of the 1952 Code, or under the general equity powers of the Court. The motion of Mrs. Cromer is made under the Court procedure.

The framing of issues under either procedure is entirely within the discretion of the Court. Issues framed under either procedure are intended for the enlightenment of the conscience of the Court and must be tried by the judge who frames them. Such issues do not survive the term. Note the following sections of the 1952 Code:

'Section 10-1057: 'In all equity causes in the courts of common pleas of this State the presiding judge may, in his discretion, cause to be framed an issue or issues of fact to be tried by a jury.'

Section 10-1241: 'Issues submitted to juries pursuant to § 10-1057 shall be tried at the same term of court at which they are ordered and, if necessary, a day shall be set for the trial of the same. But a continuance may be ordered by the court in proper cases.'

Section 10-1242: 'Upon the first day of the term immediately after the call of calendar three the presiding judge shall call for cases in which such issues are desired, and if any are presented in which such issues are, in his judgment, proper he shall at once call the same to be framed and placed upon the proper calendar for trial.'

Section 10-1243: 'At some time during the term the presiding judge shall hear the cause out of which such issues are ordered and shall, some time during said term or thereafter, file his decision therein as in other equity causes from which decision there shall be the same right of appeal as now exists in like causes.'

In Erskine v. Erskine, 107 S.C. 233, 92 S.E. 465, 468, the Court said:

'We concur, also, with the court below that, in actions in equity, the parties are not entitled, as a matter of right, to trial by jury. Even when they comply with the statute and rule 28 of the circuit court, the matter is still, by express terms of the statute in the discretion of the court'.

In Montague v. Best, 65 S.C. 455, 458, 43 S.E. 963, 964, the Court said:

'It would seem that issues in chancery cases, framed under this section, were intended for the aid of the judge who framed the issues, and that the order framing such issues for that particular term and judge would not survive the term, unless, by special order, such issues were continued along with the cause. Whether such an order would bind the next judge, need not be decided. There does not appear to have been any order continuing such issues as framed beyond the term. A mere failure to try the cause, or a general continuance of the cause, would not, in the absence of a special order for that purpose, carry forward such framed issues to the next term, so as to bind the succeeding judge.'

In Holly Hill Lumber Co. v. McCoy, 201 S.C. 427, 23 S.E.2d 372, 380, there was a suit for specific performance of an executory contract--an option--to convey land. The Court said:

'Nor did the Court err in granting a general order of reference and overruling the defendant's motion to frame issues under Section 593, 1942 Code. This was in the sound judicial discretion of the Circuit Judge, and it does not appear that it was erroneously exercised. De Loach v. Sarratt, 55 S.C. 254, 33 S.E. 2, 10, 35 S.E. 441; Cantey v. [Edward L.] Summersett & Co., 138 S.C. 151, 135 S.E. 875, 876; Erskine v. Erskine, 107 S.C. 233, 92 S.E. 465, 469; Neal v. Suber, 56 S.C. 298, 33 S.E. 463, 465; Hammond v. Foreman, 43 S.C. 264, 21 S.E. 3, 4.'

In Jefferson Standard Life Ins. Co. v. Boddie, 202 S.C. 1, 23 S.E.2d 817, 818, issues framed by Judge Dennis were disregarded in a subsequent trial of the case by Judge Mann. The Court said:

'We may say at the outset that issues framed in chancery under Code, Section 593, do not survive the term, and that a succeeding Circuit Judge before whom the cause comes up for trial at a later term is not bound to be governed thereby. Johnstone v. Matthews, 183 S.C. 360, 191 S.E. 223; In re Nightingale's Estate, 182 S.C. 527, 189 S.E. 890. The decision in these cases rests upon the principle that issues in chancery framed under this Section were intended for the aid of the Judge who framed them, and do not bind the trial Judge before whom the cause may finally be heard. And see Montague v. Best, 65 S.C. 455, 43 S.E. 963; Momeier v. John McAlister, Inc., 190 S.C. 529, 3 S.E.2d 606.'

The pleadings and supporting affidavits show that the plaintiffs' efforts to prove the alleged indebtedness of L. E. Cromer to Greenwood Lumber Company and to trace building materials into the various houses owned by the two defendants, so as to show a constructive trust, will require a long and complicated accounting which can be tried to best advantage by a referee. That phase of the case is clearly one for reference. There is no reason why the issue as to whether Mrs. Cromer signed the deed to J. Perrin Anderson, as Trustee, under duress and not be tried by a referee just as well as it can be tried by a jury. The entire case can probably be tried and disposed of more expeditiously by referring the entire matter rather than referring a part and framing issues as to a part.

It appears that the defendant, L. E. Cromer, was manager of the business of the plaintiff, Greenwood Lumber Company, throughout the period when his alleged indebtedness to the Company was incurred. He should be in better position than any one else to understand the books of the Company and explain any entries or lack of entries dealing with his transactions. Such information should be furnished before the plaintiffs go into a general reference. Therefore,

It Is Ordered that the motion of the defendant, Margaret M. Cromer, to frame issues be and is hereby denied and this entire cause is referred to D. S. Jones, Esq., Master in Equity for Greenwood County, to take the testimony and report his findings of fact and conclusions of law.

It Is Further Ordered that the defendant, L. E. Cromer, on ten days' notice from the Master do appear before the Master and answer under oath any questions which may be propounded to him by the Court or by the plaintiff, Greenwood Lumber Company, relative to any of his transactions with the plaintiff, Greenwood Lumber Company.

It Is Further Ordered that the Master in his discretion may appoint an independent auditor to make an examination of all or any part of the records of Greenwood Lumber Company and report his findngs to the Master of his assistance.

Thomas A. Wofford and Wyche, Burgess & Wyche, Greenville, for appellants.

Mays, Featherstone & Bradford, Greenwood, for respondents.

LITTLEJOHN, Acting Associate Justice.

In this action the complaint alleges that the defendant L. E. Cromer was the general manager and secretary of the plaintiff Greenwood Lumber Company, and that he converted to his own use a large amount of money, building material and credits of the company, and that the building materials so converted were used in the construction of a number of houses on lots owned by the defendant L. E. Cromer individually, and in partnership with others. It further alleges that the defendant L. E. Cromer admitted that he converted property of the Greenwood Lumber Company to build houses, and that he...