Kirby v. Kelly
| Decision Date | 23 February 1912 |
| Citation | 73 S.E. 780,90 S.C. 378 |
| Parties | KIRBY v. KELLY et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; Geo. E Prince, Judge.
"To be officially reported."
Action by Annie E. Kirby against Orlando D. Kelly and others. Judgment for plaintiff, and defendants appeal. Affirmed.
A. B Stuckey, Walter H. Wells, and Lee & Moise, for appellants. J H. Clifton, for respondent.
This is an action for dower. The complaint alleges that the plaintiff was lawfully married to the late Daniel Kirby in 1880, and thereafter lived with him as his wife; that Daniel Kirby died on or about the 6th of November, 1908; that during such coverture Daniel Kirby was seised and possessed of an estate of inheritance, in the following tracts of land (then follows the description of five tracts of land, four of which are situate in the county of Sumter and one in Lee county); that she is entitled to dower in each of said tracts, which are now in the possession of the respective parties, who are made defendants in this action. The defendants, after denying certain allegations of the complaint, set up the defense that some years prior to the death of the said Daniel Kirby the plaintiff willingly left her husband, and lived in adultery with one William Hinson and others, and continued with her said advoutrer or advoutrers until the death of her husband; and for these reasons they claim the benefit of section 2387, 1 Code of Laws. They also interposed as a fourth defense that the grand jury for Florence county in 1907 found a true bill against the plaintiff and William Hinson for adultery, and that thereupon the plaintiff fled the state and remained away until after the death of Daniel Kirby. After the filing of the answer, both the plaintiff and the defendants gave notice that they would make motion to submit certain issues to the jury. Thereafter, to wit, on the 5th day of July, 1910, the plaintiff gave notice that, upon the call of the case, she would make a motion to strike out the fourth defense on the ground that it was irrelevant and redundant, which motion was granted. Immediately thereupon the defendants served notice of intention to appeal from said order. When the case was called for trial, the defendants contended that the notice of intention to appeal acted as a supersedeas, and made a motion to stay proceedings, until the case was finally determined, but the motion was overruled. Thereupon the motions to frame issues for trial by a jury were called up, and the defendants formally withdrew their motions.
His honor the presiding judge, upon the plaintiff's motion then ordered that the following issues be submitted to the jury: "Did the plaintiff prior to the death of her husband, Daniel Kirby, have an advoutrer, and willingly leave her husband, and go away and continue with him in adultery?" The defendant's attorneys objected to the form of the order, on the ground that the issues as to her having an advoutrer, and the issue as to her willingly leaving her husband, and going away and continuing with her advoutrer in adultery, should have been separately submitted to the jury, but the objection was overruled. The following statement appears in the record: ...
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