Meier v. Kornahrens
| Decision Date | 23 February 1920 |
| Docket Number | 10386. |
| Citation | 102 S.E. 285,113 S.C. 270 |
| Parties | MEIER v. KORNAHRENS ET AL. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Dorchester County; John S Wilson, Judge.
Proceeding by Henry Meier, executor, to prove a paper purporting to be the will of Mrs. Meta H. C. S. Rodenberg, deceased, opposed by J. N. Kornahrens, and others. From a decree of the probate court rejecting the alleged will, the executor appeals. From an order framing issues to be submitted to jury on hearing of the appeal, the executor appeals. Affirmed.
Logan & Grace, of Charleston, for appellant.
Legare Walker, of Summerville, and Whaley, Barnwell & Grimball, of Charleston, for respondents.
The appellant, Meier, as executor thereof, sought to prove a paper purporting to be the will of Mrs. Meta H. C. S Rodenberg, deceased, in the probate court for Dorchester. By decree, filed August 23, 1918, the court rejected the alleged will. Meier gave due notice of appeal to the circuit court and on September 6, 1918, filed therein a certified copy of the record from the probate court, as required by section 64 of the Code of Civil Procedure. On January 3, 1919, respondents served notice on Meier of their intention to apply to the court for an order, framing issues to be submitted to a jury on the hearing of the appeal. Against Meier's objection that the notice was not given within the time allowed by law, the court granted the order prayed for by respondents, and that is the basis of the sole ground of appeal to this court.
Section 66 of the Code of Civil Procedure provides:
"When such certified copy [that required by section 64] shall have been filed in the circuit court, such court shall proceed to the trial and determination of the question, according to the rules of law; and if there shall be any question of fact or title to land to be decided, issues may be joined thereon under the direction of the court, and a trial thereof had by jury."
By the terms of that section, trial by jury on appeal of issues of fact is not demandable as of right, but may be allowed in the discretion of the court, and, when allowed, the issue is to be joined under the direction of the court; hence, the practice has prevailed, ever since the adoption of the Code, for the party (appellant or respondent) who may desire a trial by jury of any issues of fact on such appeals, to move the court, on due notice to the opposite party, for an order framing such issues. Ex parte Apeler, 35 S.C. 417, 14 S.E. 931, and cases cited by the court. The Code of Procedure does not prescribe the time within which such motion shall be made. But, as most of the issues of fact arising on such appeals are issues in causes of an equitable nature, by common consensus of the bench and bar, rule 28 of the circuit court has been applied to the framing of issues on such appeals.
It appears from a glance at that part of the rule which is above quoted that it was originally intended to apply to equity causes pending in the original jurisdiction of the circuit court, in which the issue is joined, when the answer is served, and therefore the time is specified in the rule within which the notice of the several motions for issues must be served. And while that rule was not originally intended to apply to the framing of issues on appeals from the probate court, nevertheless, in the absence of any statutory provision, or other applicable rule, it has been applied in such cases ever since the adoption of the Code, and has served the purpose fairly well.
But, as far as we have been able to discover, this is the first case in which this court has been called upon to decide the question: When is the "issue joined" within the meaning of the words of the rule, as applied to such appeals? Clearly, they do not mean when the answer is served in the probate court, for, at that time, it cannot be known whether there will be an appeal, nor by which side; hence they must be construed to mean when the issue on appeal is joined.
Now the issues on appeal are made by the exceptions, or grounds of appeal, and they determine whether the issues will be of law or of fact. Therefore the practice has been for the appellant, who desires a trial by jury, to give notice thereof under rule 28 at the time of serving his exceptions, or at any time within ten days thereafter, and for the respondent, if he desires such a trial, to serve his notice of motion therefor within ten days after service of the exceptions upon him, and, of course, as...
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Muldrow v. Jeffords
...that course must be followed by any one claiming that right." See, also, Ex parte Brown, 37 S.C. 181, 15 S.E. 926. In Meier v. Kornahrens, 113 S.C. 270, 102 S.E. 285, court, in discussing what is now section 5351, vol. 3, Code 1922, says: "But this not an equity case, nor does the appeal in......
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Johnson v. Johnson
...immaterial. It is upon the appeal to the Law Courts that the actual contest, the substantial trial, really occurs." In Meier v. Kornahrens, supra, the Court held the words of rule 28, ""after issue joined," must be construed to mean "when the issue on appeal is joined," and stated, in the s......
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Henson v. Wolfe
... ... 3, Civil Code 1922, and ... section 188, vol 1, Code of Civil Procedure 1922, and ... pursuant to the practice outlined in Meier v. Kornahrens ... et al., 113 S.C. 270, 102 S.E. 285. [130 S.C. 278] Both ... sides gave notice of proposed issues to be framed for the ... jury; ... ...