Hydrick v. Fairey

• Decision Date: 01 June 1925
• Docket Number: (No. 11776.)
• Citation: 128 S.E. 358
• Parties: HYDRICK et al. v. FAIREY et al.
• Court: South Carolina Supreme Court

128 S.E. 358

HYDRICK et al.

v.FAIREY et al.

(No. 11776.)

Supreme Court of South Carolina.

June 1, 1925.

Appeal from Common Pleas Circuit Court of Orangeburg County; F. P. McGowan, Special Judge.

Suit by D. J. Hydrick and Mollie R. Hydrick against J. J. Fairey and D. O. Herbert, executors of Mrs. Adeline H. Smoake and Maude Baxter and others. From order denying defendants' motion for judgment, after plaintiffs' refusal to comply with order of discovery, defendants appeal. Appeal dismissed.

Herbert & Herbert and Raysor, Moss & Lide, all of Orangeburg, and S. G. Mayfield and J. Wesley Crum, both of Bamberg, for appellants.

E. C. Mann, John H. Hydrick, and Brantley & Zeigler, all of Orangeburg, for respondents.

GARY, C. J. The following statement appears in the record:

"This action was commenced on the 22d day of June, 1923, for the specific performance of a contract in writing, alleged to have been executed by Mrs. Adeline H. Smoake to the plaintiff, whereby she agreed to bequeath and devise one-half of her property to the plaintiff, Mollie R. Hydrick. An amended complaint was filed on or about the 9th day of August, 1923."

The appeal is from the following order:

"This is a motion made by the defendants in open court, asking for judgment in favor of defendants without stating any specific ground other than that it is to be made upon the entire record in the case. The motion is opposed by the plaintiffs.

"The action is one of an equitable nature, and is substantially for the specific performance of an alleged written agreement to make a will, giving a legacy to the plaintiffs, which it is alleged was never performed.

"Before the time for answering expired, the defendants made a motion before his honor, Judge I. W. Bowman, for an order requiring the plaintiffs to permit the defendants to inspect and have a copy of the agreement set out in the complaint to enable them to prepare their answer, and in said motion Judge Bowman, on the 22d day of August, 1923, granted an order requiring the plaintiffs to have made a photographic copy of the said written agreement and deliver a copy thereof to the defendants; and soon thereafter the defendants made a motion before his honor, Judge J. K. Henry, at the last term of the court, seeking obedience to the order of Judge Bowman, and on February 11, 1924, Judge Henry granted an order directing that the terms of Judge Bowman's order be carried out within a certain time, and, upon failure to do so, that the plaintiffs be prohibited from proving said agreement or giving secondary evidence of its contents in this action or in any other action between the parties.

"The action has never been docketed, and it is apparent that the defendants construe this motion as a trial upon the merits of the case, and thereby seek the determination of the rights of the parties in this form. After argument of counsel and consideration of the record, the court is of opinion that the motion should not be granted.

"The plaintiffs have the right to a trial of the case upon the merits, and in such trial the force and effect of the orders herein made can be considered, and a complete determination of the rights of the parties can be had. Only 4 days' notice of the motion was given.

"The motion is therefore refused, without prejudice to the defendants to renew this motion upon proper notice or take such other and further steps as they may be advised."

From the foregoing order, the defendants appealed upon the following exceptions:

"I. His honor erred in holding that 'this is a motion by the defendants in open court'; the error being that the matter did not come before his honor on the calendar, but came before him on notice given 4 days before the time set for the hearing thereof, and was therefore not a motion in open court.

"II. His honor erred in holding that 'it is apparent that the defendants construe this motion as a trial upon the merits of the case, and thereby seek the determination of the rights of the parties in this form'; the error being that the defendants...