McCown v. Rucker

• Decision Date: 17 March 1911
• Citation: 70 S.E. 455,88 S.C. 180
• Parties: McCOWN v. RUCKER et al.
• Court: South Carolina Supreme Court

70 S.E. 455

88 S.C. 180

McCOWN v. RUCKER et al.

Supreme Court of South Carolina

March 17, 1911

Appeal from Common Pleas Circuit Court of Darlington County; Geo. W Gage, Judge.

Action by John M. McCown against B. H. Rucker and others. From a ruling withdrawing the case from the jury both parties appeal. Reversed and remanded.

Geo. W Brown, for plaintiff. E. C. Dennis, for defendant Rucker. Macfarlan & Thornwell, for defendant Joynes.

HYDRICK J.

This is an action for partition. Plaintiff alleges that he is the owner in fee and has legal title to one undivided half interest in the tract of land described; that defendant Rucker is the owner of the other half, but is in unlawful possession of the whole, and withholds from him possession of his part thereof. The defendant Joynes is made a party, on the ground that he holds a mortgage of the land executed by Rucker. The defendant Rucker denies all the allegations of the complaint, sets up title to the whole tract in himself the plea of bona fide purchaser thereof for value without notice, and pleads the statute of limitations. The defendant Joynes denies all the allegations of the complaint, alleges that G. J. McCown, under whom Rucker claims, had acquired title by adverse possession, sets up the plea of bona fide purchase for value without notice, and pleads the statute of limitations. The others named as defendants were not served. The case was docketed on calendar 1, and came on for trial before his honor, Judge Gage, and a jury. At the close of plaintiff's testimony, defendants moved for the direction of a verdict in their favor, on the ground that plaintiff had failed to prove legal title in himself to any interest in the land. The court ruled as follows: "Assuming that the plaintiff has stated a legal cause of action in the complaint, and assuming that he has introduced testimony tending to show an equitable interest, would it not be error to turn him out of court, because he is here practically in two courts, a court of law and a court of equity? If I were to take this issue away from the jury, it would be the utmost I could do, for the testimony which he has introduced would tend to show a right in equity, and he would still be entitled to be in court and have that heard in chancery." Counsel for plaintiff then asked the court to dismiss the jury and proceed to hear the case. Counsel for defendant stated that he had a right to appeal from the ruling. His honor said, if counsel would assure him that he would appeal, he would withdraw the case from the jury. Upon such assurance being given, the case was withdrawn from the jury, to which action of the court both sides excepted, and both have appealed to this court.

Nothing further was done in the court below. No order was passed, and no judgment rendered. Therefore the appeal is not properly before this court. The Code provides for appeals only from orders or judgments. Rulings may, of course, be excepted to, and made the grounds of appeal from an order or judgment affected thereby; but there can be no appeal from a mere ruling. But since the parties have gone to the expense of printing the brief and their arguments, we waive the point, and will consider the appeal, as if the ruling had been consummated in an order denying the parties the mode of trial to which they are entitled. Such an order is appealable. Ferguson v. Harrison, 34 S.C. 169, 13 S.E. 332; McLaurin v. Hodges, 43 S.C. 187, 20 S.E. 991; Alston v. Limehouse, 61 S.C. 1, 39 S.E. 192. We wish to say, however, that appeals from interlocutory orders will not be encouraged, because they can be reviewed on appeal from the final judgment. If that should turn out to be satisfactory to all parties, of course, no appeal would be taken, and the time and labor of counsel and of this court, and the expense and delay incident to an appeal, would be saved. In most cases, therefore, the better practice is to await the final judgment before appealing.

Numerous exceptions have been taken to the rulings of the court in the admission or exclusion of evidence, and on other grounds; but none of these will be considered, because there is...