Lyons v. Butler
| Decision Date | 29 January 1986 |
| Docket Number | No. 0659,0659 |
| Citation | 343 S.E.2d 630,288 S.C. 498 |
| Court | South Carolina Court of Appeals |
| Parties | , 71 A.L.R.4th 883 Lucy Ann LYONS, Respondent, v. James Thomas BUTLER, Appellant. . Heard |
Richard J. Dolce, West Columbia, for appellant.
Michael Ray Ellisor, Cayce, for respondent.
In this trespass to try title action, both respondent Lucy Ann Lyons and appellant James Thomas Butler claim title to a twenty foot strip of land. The matter was referred to a special referee. Before the special referee heard the case, however, a circuit court judge recalled it and placed it on the jury docket. A jury trial resulted in a verdict for Lyons. Butler appeals. We affirm.
By a consent order of reference dated May 23, 1983, the action was referred to a special referee who scheduled the case for a hearing on September 21, 1983. At the scheduled hearing, Lyons announced that she had fired her attorney and hired a new one. At that time, her new attorney requested and was granted a continuance to permit him to prepare the case for trial. The next day Lyons moved to transfer the case to the jury roster claiming an absolute right to have her case tried before a jury. The trial judge granted the motion pursuant to Section 15-23-60, 1976 Code of Laws of South Carolina. At a jury trial, Lyons was awarded one thousand seven hundred and forty-five dollars ($1,745.00) actual damages and two hundred fifty-five dollars ($255.00) punitive damages. Implicit in the jury's verdict is the finding that Lyons owns the disputed property.
Butler raises several issues on appeal. However, his principal contention is that the trial judge committed reversible error by ordering a jury trial after the parties had consented to an order of reference. We disagree.
A trespass to try title action is an action at law. Corley v. Looper, 340 S.E.2d 556 (S.C.Ct.App.1986). Section 15-23-60 provides that an issue of fact in an action to recover specific real property must be tried by a jury unless trial by jury is waived as provided in Section 15-27-90, 1976 Code of Laws of South Carolina, or unless a reference is ordered. Section 15-27-90 provides for waiver of trial by jury with the consent of the parties. By consenting to a reference, a party ordinarily waives his right to a jury trial. Williams v. Weeks, 69 S.C. 545, 48 S.E. 622 (1904); Griffith v. Cromley, 58 S.C. 448, 36 S.E. 738 (1900).
Lyons takes the position that since the order of reference provided that the reference was "to be held within thirty (30) days of the date of this order and reported within 60 days from date," failure of the special referee to hold a hearing or make his report within the times prescribed voided the reference. While some courts have so held, 1 we think the better rule is that the failure of the referee to act within the times prescribed in the order of reference does not void the order, but simply restores discretion to the trial judge as to the manner of disposing of the case. See School District No. 10 of Charleston County v. Wallace, 241 S.C. 323, 128 S.E.2d 167 (1962).
Section 15-31-110, 1976 Code of Laws of South Carolina, provides that referees shall file their reports within sixty (60) days of the date on which the action is submitted to them. Section 15-31-120, 1976 Code of Laws of South Carolina, provides that if the referee shall fail to file his report as prescribed in Section 15-31-110, either party may serve notice that he elects to end the reference. By moving to transfer the case to the jury roster, Lyons effectively elected to end the reference. It was therefore not error for the trial judge to end the reference and transfer the case to the jury roster.
Butler argues that the trial judge should not have permitted a real estate agent to testify as to the value of the property in dispute. 2 He also objects to the trial judge's stating in the presence of the jury that a witness, stipulated as being an expert, would ultimately have his qualifications determined by the jury. Even if these statements in the record were improper our review fails to show contemporaneous objections to the judge's actions. A point not objected to during trial will not be considered on appeal. Hall v. Palmetto Enterprises II, Inc., 282 S.C. 87, 95, 317 S.E.2d 140, 145 (Ct.App.1984).
It is next contended by Butler that the trial judge should not have allowed testimony that his expert witness pleaded guilty to three counts of failure to remit employee withholding taxes. A witness may not be impeached by evidence of specific acts of misconduct, except for crimes involving moral turpitude and not too remote in time. State v. Harvey, 275 S.C. 225, 226, 268 S.E.2d 587 (1980). Moral turpitude is "an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or society in general, contrary to the accepted and customary right and duty between man and man." State v. LaBarge, 275 S.C. 168, 172, 268 S.E.2d 278 (1980). While Butler argues on appeal that the crimes were too remote in time to be used for impeachment...
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