Lorick & Lowrance v. Motley

• Citation: 48 S.E. 614,69 S.C. 567
• Parties: LORICK & LOWRANCE v. MOTLEY.
• Decision Date: 13 September 1904
• Court: United States State Supreme Court of South Carolina

48 S.E. 614

69 S.C. 567

LORICK & LOWRANCE v. MOTLEY.

Supreme Court of South Carolina

September 13, 1904

Appeal from Common Pleas Circuit Court of Kershaw County; Townsend Judge.

Proceedings by Lorick & Lowrance against William Motley for contempt. From a decree adjudging the defendant guilty, he appeals. Affirmed.

J. T Hay, for appellant. Lyles & McMahan, for respondents.

WOODS J.

This is an appeal from an order of the court of common pleas adjudging the defendant guilty of a willful violation of a decree of the court of common pleas, and committing him to jail until he "shall pay unto the clerk of said court for the plaintiffs herein, the sum of one hundred dollars together with the sheriff's fees and any other costs that may arise, or until further order of this court." The defendant asks the reversal of the order on three grounds: First, because the order, as he alleges, was granted at chambers, and for that reason void. Second. Because the circuit judge, without authority of law, added the words, "or until the further order of this court," after the decree was filed and appeal taken; the decree without such added words being, it is insisted, a nullity as providing an indefinite term of imprisonment. Third. Because the defendant could not, in the contempt proceeding, be required to make reparation to plaintiffs as a punishment.

In conformity with the complaint in the cause, the court of common pleas had made a decree enjoining the defendant from setting up any claim to or committing any trespass on certain lands of plaintiffs. Upon affidavits submitted by plaintiffs to the effect that the defendant was cutting valuable timber trees on the land in disregard of the decree of the court, Hon. D. A. Townsend, presiding in the court of common pleas for Kershaw county, on June 4, 1903, issued an order requiring the defendant to show cause the next day why he should not be attached for contempt. In his decree Judge Townsend thus states the action taken upon hearing the return of defendant: "The defendant, in response to said order or rule, appeared personally in court on the 5th day of June, 1903, and by his attorney, J. T. Hay, Esq., answering the said order, denied that he had trespassed upon the lands of plaintiffs, or crossed the line fixed by C. C. Haile, surveyor, or disregarded the order of this court; and with sundry other allegations alleged that the defendant 'can prove where line is located by William Sanders, James Ross, and Isom Medlin, old citizens, but is unable to procure their attendance to-day.

Thereupon it was proposed by J. T. Hay, Esq., attorney for the defendant, that the matters in issue be referred to a referee to take testimony and report to the judge at a later date, and by agreement of counsel, and upon motion of defendant's attorney, an order was passed, dated the 5th day of June, 1903, referring it to John S. Verner, master for Richland county, to take testimony at Columbia, S. C., upon the issues involved, and report the same to me not later than July 1, 1903, and that the cause be decided by me at chambers, having been heard at the session of the court of common pleas for Kershaw county, in Camden, and been marked "Heard' on the calendar." Testimony was taken by the master after the adjournment of the court, the defendant's counsel being present and participating without objection. The circuit judge, considering the testimony along with the affidavits filed on both sides, filed his decree, adjudging the defendant in contempt. The circuit judge did not, in any legal sense, hear the contempt proceedings at chambers. When the plaintiffs' affidavits and the defendant's sworn return had been heard, and the opportunity for argument given in open court, the matter was ready for decision. It was entirely a matter of grace to the defendant, in no wise affecting the jurisdiction, that the Court, at defendant's request, allowed further evidence to be submitted after adjournment.

The circuit judge did not exceed his power in having the clerk to add to the decree, after filing, the words, "or until the further order of this court." It was clearly the result of the views expressed in the opinion...