Lowndes v. Miller

• Decision Date: 22 June 1886
• Citation: 25 S.C. 119
• Parties: LOWNDES v. MILLER.
• Court: South Carolina Supreme Court

25 S.C. 119

LOWNDES v. MILLER.

Supreme Court of South Carolina.

June 22, 1886

1. Where the Circuit Judge, in a cause properly before him determined none of the issues involved, but recommitted the case to the referee to take and report further testimony upon the matters at issue, an appeal does not lie from such order of recommittal.

2. It is within the discretion of the Circuit Judge to suspend the hearing of a cause for the purpose of obtaining further testimony, if in his judgment the ends of justice require it.

Before FRASER, J., Georgetown, May, 1885.

The opinion sufficiently states the case.

Messrs. Simonton & Barker and Walter Hazard , for plaintiff.

Mr. R. Dozier , contra.

OPINION

MR. JUSTICE MCIVER.

This action was brought by the plaintiff for the foreclosure of a mortgage of real estate, given to secure the payment of an ordinary money bond, the plaintiff claiming to be the owner and holder thereof, by various successive assignments from the original obligee and mortgagee. Upon hearing the pleadings it was referred to a referee " to inquire into the facts set forth therein and to report the testimony to this court." The case came on for a hearing before Judge Fraser on the pleadings and testimony taken by the referee, and he, after suggesting several difficulties and doubts as to the sufficiency of the testimony adduced to establish the several assignments through which the plaintiff claimed, but without deciding definitely any of the points suggested, declined to proceed to a consideration of the merits of the case, or to determine any of the issues in the action, and passed an order recommitting the case to the special referee, in which he directed that the referee " do take and report to this court such further testimony in reference to the various assignments as may be produced before him in the manner provided by law, by the plaintiff or defendant in this case."

From this order both parties appeal-the plaintiff, substantially, upon the ground that the testimony reported by the referee was sufficient to establish his case, and that the Circuit Judge erred in declining to render judgment of foreclosure as prayed for in the complaint; the defendant upon the ground, substantially, that the testimony reported by the referee was insufficient in law to establish the plaintiff's right to the bond and mortgage, and therefore the defendant was entitled to a judgment dismissing the complaint, and the Circuit Judge erred in declining to render such judgment.

Before this court can enter upon any discussion or render any decision upon the points raised by the several grounds of appeal, we must first determine a preliminary question, which meets us at the very threshold, and that is whether we now have jurisdiction of such points. This depends upon the inquiry whether the order complained of is appealable. Section 11 of the Code of Procedure declares what shall be reviewable by appeal to the Supreme Court, as follows: " 1. Any intermediate judgment, order or decree, involving the merits in actions commenced in the Courts of Common Pleas and General Sessions, brought there by original process, or removed there from any inferior courts or jurisdiction, and final judgments in such actions. *** 2. An order affecting a substantial right made in an action, when such order, in effect, determines the action, and prevents a judgment from which an appeal might be taken, or discontinues the action, and when such order grants or refuses a new trial; or when such order strikes out an answer, or any part thereof, or any pleading in an action. *** 3. A final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment."

It is quite clear that the order of Judge Fraser does not fall under subdivision 3 of the section just quoted; and we think it equally clear that it does not fall under subdivision 2. For to bring it under that subdivision it must be not only an order " affecting a substantial right," but it must also, in effect, determine the action or prevent a judgment from which an appeal might be taken, or it must discontinue the action. Now, even if it should be...