Lewis v. Jones
| Decision Date | 06 February 1903 |
| Citation | 43 S.E. 525,65 S.C. 157 |
| Parties | LEWIS v. JONES et al. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Hampton county; Benet Judge.
Action by M. A. Lewis against E. M. Jones, Hampton Jones, Paul Jones, and W. R. Mew. From an order referring the question of damages arising from an injunction, plaintiff appeals. Affirmed.
W. J Thomas, for appellant. Cornelius J. Colcock, for appellee.
The appeal herein is from an order of reference, to ascertain the amount of damages, if any, for which the plaintiff is liable by reason of the written undertaking entered into by him upon obtaining an order of injunction. The complaint alleges that the plaintiff is owner in fee and in possession of the land therein described; that the defendants, with force and arms entered upon said land, pulled down, cut up, and burnt 130 panels of board fencing, pulled down and destroyed six panels of garden fencing, and cut down and destroyed five shade trees; that the defendants threatened to re-enter said premises and destroy the fences as soon as they are rebuilt by the plaintiff; and the defendants are unable to respond in damages for the injuries inflicted by them, which were alleged to be $500. On reading and filing the verified complaint, his honor Judge Norton issued a rule to show cause before him on the 26th of March, 1894, why an injunction should not issue, restraining the defendants from entering upon said land, or disturbing the plaintiff's possession thereof. On hearing the return to the rule to show cause, his honor granted the injunction, but provided in the order that the plaintiff should execute an injunction bond in the sum of $300, with one or more sureties. The plaintiff executed the required undertaking, which contained the following provision: "Now, the condition of this obligation is such that if the above-bounden plaintiff, M. A. Lewis, shall pay all damages which the defendants in said suit may sustain in consequence of said injunction being granted, should the same be hereafter dissolved, then this obligation to be void; otherwise to be of full force and virtue." By consent of counsel both for plaintiff and defendants, all issues of law and fact were referred by the court to W. H. Townsend, as special referee. The referee made his report, concluding as follows: "The testimony being insufficient to establish or show title in the plaintiff as alleged in the complaint, I conclude, as matter of law, that the plaintiff's complaint should be dismissed for failure of proof, and judgment entered accordingly." It does not appear that there were any exceptions to this report. On the 10th of February, 1898, his honor Judge Watts signed an order that the said report be confirmed in all respects, and that the defendants have leave to enter up judgment dismissing the action and for their costs. His honor Judge Benet on the 19th of October, 1891, granted the following order: "Whereas, judgment has been rendered in the above case in behalf of the defendants, and ascertainment of damages sustained by the defendants in consequence of the injunction heretofore granted remains to be settled, ordered, that it be referred to G. H. Buckner, an attorney of this court, to ascertain and report what damages, if any, have been sustained by reason of the injunction."
The appellant's first exception is as follows: "(1) His honor erred in granting an order of reference herein to ascertain the amount of damages due defendants by plaintiff for obtaining an injunction restraining the defendants from committing waste on the property in dispute until the case could be heard on its merits; the injunction never having been vacated, and no court having finally decided that plaintiff was not entitled to the injunction, and such fact being clearly shown to the court at the time of granting the order of reference." Section 243 of the Code of Civil Procedure is as follows: ...
To continue reading
Request your trial