Momeier v. John McAlister

• Decision Date: 26 April 1940
• Docket Number: 15071.
• Parties: MOMEIER v. JOHN McALISTER, Inc., et al.
• Court: South Carolina Supreme Court

8 S.E.2d 737

193 S.C. 422

MOMEIER v. JOHN McALISTER, Inc., et al.

No. 15071.

Supreme Court of South Carolina

April 26, 1940

H L. Erckmann and John I. Cosgrove, both of Charleston, for appellants.

A T. Smythe, of Charleston, for respondent.

STUKES Justice.

There was a former appeal in this action to this Court wherein the opinion is reported in 190 S.C. 529, 3 S.E.2d 606, and there is no need to add here to the statement there contained except to the extent necessary to understand the present appeal.

After the aforementioned decision of this Court was filed in the lower Court, defendants moved there to transfer the case to Calendar One for trial of legal issues. This the plaintiff resisted and the presiding Judge made the following order:

"It appears that hitherto his Honor, Judge Thurmond, at that time presiding over the Court of Common Pleas for Charleston County, made an order in which he submitted certain issues of fact in this cause to be tried by a jury in his discretion as Chancellor, and not pursuant to the provisions of the Statute having to do with the framing of issues, and in which he refused a motion by Plaintiff to refer issues to the Master and in which he continued the cause to the next term of the Court. From this order Plaintiff appealed to the Supreme Court, which has decided that Judge Thurmond had a right to refer issues to a jury as he did, but that in view of his continuance of the cause, his action in so doing is not binding upon any subsequent Judge who would be at liberty to refer the same issues or different issues, or to decline to refer any issues, as he might be minded. The Supreme Court also decided that so much of Judge Thurmond's order as refused Plaintiff's motion to refer issues to the Master is not appealable. The Court, however, expressly declined to consider the proposition contended for by Defendants that 'the case involved both legal and equitable issues, in that, the complaint being based upon an alleged private nuisance it must first be determined by the verdict of a jury at law that such nuisance exists'. The Court concluded that this question was not involved in the motions before Judge Thurmond, or that he in any wise passed upon the same, and hence was not properly before the Supreme Court, and could not be decided upon the appeal. The Court went on to say [190 S.C. 529, 3 S.E.2d 611]: 'If the contention of respondents is correct such an issue would be a legal one and would be submitted to a jury as a matter of right, upon a transfer of the case to Calendar I.'

"The motion to transfer the case to Calendar One was argued before me at length by counsel for all parties, and I have carefully considered the question presented. I am not of the opinion that the complaint in this case is based upon an alleged private nuisance or that this is a nuisance case, nor am I of the opinion that Defendants are entitled to have the case submitted to a jury as a matter of right. The motion to transfer the case to Calendar One is therefore refused."

From this order the defendants have appealed upon several exceptions which will not be treated separately but will all be considered and disposed of. They make the interesting and, in this jurisdiction, novel question of whether an action in equity for an injunction, as this is, by a neighboring property owner (allegedly suffering special injury and damage to his property on account of the alleged violation) for the enforcement of a city zoning ordinance is governed by the law applicable to an action for the abatement by injunction of a private nuisance, which law appellants contend requires that the fact of the existence of a nuisance must be established, if denied, by the verdict of a jury before an injunction will issue.

The plaintiff in his complaint alleges that the city Council of Charleston heretofore enacted such an ordinance whereby it is provided that funeral homes are not permitted to be operated in the area of the city wherein plaintiff's property, his residence, is located; and that the defendants purchased property adjoining plaintiff's, formerly used as a residence, and are there conducting a funeral home which is alleged to be in violation of the ordinance, has caused plaintiff injury and damage by resulting depreciation in value of his home, etc., and that such damage is special to plaintiff, differing from the damage which may be suffered by the public generally; that plaintiff has applied without result to the city authorities for relief; and that he has no adequate remedy at law for there would have to be successive suits for damages, each including damages only to the date of commencement, occasioning a multiplicity of suits. The prayer is for an injunction. The answer makes issues of fact which will have to be tried. The contention is as to the mode of trial, whether by jury as of issues of fact at law, or whether as ruled by the lower Court in the above quoted order.

Defendants ably argue that they are entitled under the law of this State to trial by jury of an issue of whether their alleged actions constitute a nuisance whereby plaintiff has suffered damage and strongly rely upon the decision of this Court in Kennerty v. Etiwan Phosphate Company, 17 S.C. 411, 43 Am.Rep. 607, which we shall refer to as the Kennerty case. Careful reading of this decision shows that it was decided upon an entirely different question than that referred to, and the complaint for injunction was dismissed upon the ground that the plaintiff was estopped to bring the action by the terms of an agreement of settlement of his former suit for damages for the same acts of the defendant which he sought to enjoin. The statement in the opinion that the alleged nuisance and resulting damage to plaintiff, being denied by the answer, would have to be established by the verdict of a jury at law before equity would act by injunction was rested upon two authorities both of which appear to have related to real property rights.

The Code provides, Section 593: "An issue of law must be tried by the court, as also cases in chancery [Italics added] ***. An issue of fact, in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury ***," and Section 594: "Every other issue is triable by the court ***."

This action is one in equity for injunction and no issue arises upon the pleadings relative to the title to or possession of real or personal property.

The subsequent decisions of this Court which cite with approval the Kennerty case are at least for the most part cases which involved property rights, notably trespass cases and those in...