Momeier v. John McAlister, Inc.

• Decision Date: 26 June 1939
• Docket Number: 14904.
• Citation: 3 S.E.2d 606,190 S.C. 529
• Parties: MOMEIER v. JOHN McALISTER, Inc., et al.
• Court: South Carolina Supreme Court

3 S.E.2d 606

190 S.C. 529

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

No. 14904.

Supreme Court of South Carolina

June 26, 1939

Augustine T. Smythe, of Charleston, for appellant.

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

L. D LIDE, Acting Associate Justice.

The prayer of the complaint herein is that the Court do make its decree permanently enjoining and restraining the defendants from conducting upon the premises described in the complaint situate in the City of Charleston, the business of a funeral home. After the filing of the answer and the joinder of issue the defendants gave notice of a motion for an order requiring that the whole issue or certain questions of fact specified in the notice be tried by a jury, pursuant to the terms of section 593, Code 1932, the questions of fact specified in the notice being as follows:

"(1) Has plaintiff suffered any actionable damage by reason of the use and occupation of the premises in question by the Defendants or any of them?

"(2) Do the acts of defendants and the use of the property by them as shown by the evidence constitute a nuisance to plaintiff?"

The plaintiff thereupon gave notice of a motion for an order referring the cause to the Master to take the testimony and report the same to the Court with his findings on all questions of law and fact with leave to report any special matter. The plaintiff's notice further stated that if the motion for an order of reference be refused he would (reserving, not waiving his right to insist upon an order of reference and to maintain that no issues should be submitted to the jury) ask that two additional questions of fact be submitted to the jury, to wit, the following:

"(3) Will the plaintiff suffer any actionable damage by reason of the use and occupation of the premises in question by the defendants or any of them as it is intended by the defendants or any of them to use and occupy the same?

"(4) Will the acts of the defendants or any of them and the use of the property by them or any of them as the defendants or any of them intend to act and as they or any of them intend to use the said property constitute a nuisance to the plaintiff?"

Plaintiff's notice further stated that subject to the same conditions and qualifications he would move that such issues, if any, as may be submitted to a jury, be submitted, not under Section 593 but under the old equity practice and merely for the enlightenment of the Court.

These motions came on to be heard at the Fall, 1938, term of the Court of Common Pleas for Charleston County before Hon. J. Strom Thurmond, Presiding Judge, who after hearing argument of counsel for the respective parties handed down his order dated November 23, 1938, wherein he refused plaintiff's motion to refer the issues to the Master, but held that all four of the above quoted questions of fact should be submitted to a jury, stating that the same were "submitted to a jury to be tried by said jury in my discretion as Chancellor and not pursuant to the provisions of said statute". Judge Thurmond's order further stipulates that the trial of these issues be continued until the next term of the Court of Common Pleas for Charleston County, "it appearing that this is a proper case for such continuance."

No appeal was taken from this order by the defendants, but the plaintiff brings the cause to this Court upon four exceptions which are here quoted in full, for the reason that the arguments of counsel for the respective parties indicate that some controversy exists as to just what questions are involved in this appeal. These are the exceptions:

"1. Because it is respectfully submitted that His Honor, the Trial Judge, erred in not making an order of reference referring this cause to the Master for Charleston County under a general order of reference, the error being that this is an equity case, and that a general order of reference is a mode of trial to which appellant is entitled.

"2. Because it is respectfully submitted that His Honor, the Trial Judge, erred in framing issues for a jury in this cause, the error being that the entire cause should have been referred to a Master under a general order of reference, there being no necessity for the framing of issues.

"3. Because it is respectfully submitted that His Honor, the Trial Judge, erred in submitting issues to a jury to be tried by said jury 'in my discretion as Chancellor', and at the same time and in the same order continued the cause and the trial of said issues to the next term of the Court of Common Pleas, at which the Trial Judge who made the said order will not preside, so that under the terms of the said order, it is impossible that the issues shall be submitted to a jury in his discretion.

"4. Because it is respectfully submitted that His Honor, the Trial Judge, erred in making no provision in his order for any method of trying so much of this cause as is not involved in the issues which he undertook to submit to a jury, the error being that he should have made a general order of reference as to so much of the cause as is not involved in the issues so submitted."

It is quite clear that the first exception is based upon the contention that Judge Thurmond should have granted a general order of reference because the appellant was entitled to that mode of trial as a matter of right. It is provided in section 653, Code 1932, that where the parties do not consent, the Court may, upon application of either, or its own motion, direct a reference in certain cases, among them being in "all equitable actions and of equitable issues in actions at law"; and that the order may be general of all issues of both law and fact, or may be so limited as the Court may direct, with the provision that this section shall not be construed to deprive any party of a trial by jury of any case or issue where he is entitled to the same as a matter of right "under the present practice". It seems to us that the language of this section is sufficient in itself to show that the granting of an order of reference is a matter within the discretion of the trial Court. It will be observed that the word used is may, and there are no mandatory provisions in the statute. Moreover, this statutory enactment conforms to the established practice in equity cases, that the mode of trial, whether by the Court, or by a Master or referee, shall be left to the discretion of the trial Judge. Prior to the amendment to the law relating to compulsory orders of reference adopted in 1928, a general order covering all issues, both of law and of fact, could not be granted without the consent of the parties, and except for the change thus made by this amendment our practice conforms to the historic procedure in Courts of equity, and we think the following is a correct statement of the prevailing rule: "Where the subject is one proper for reference it is generally within the power of the Court in its discretion either to refer the cause, even without consent of the parties, or to determine the questions involved without a reference. In the absence of some special rule of practice, a reference is not a matter of right, but it is a matter for the exercise of judicial discretion which ordinarily is not subject to review on appeal or exception." 21 C.J. 605, 606. See, also, Sumter Hardwood Co. v. Fitchette, 133 S.C. 149, 130 S.E. 881.

The second exception by a liberal construction may perhaps be deemed to charge the trial Judge with an abuse of his discretion in framing issues for a jury and overruling the motion for a general order of reference, although it is strenuously urged by counsel for respondents under the authority of Lawrence v. Lawrence, 82 S.C. 150, 63 S.E. 690, that since there is no specific charge of abuse of discretion the appeal upon this point is without standing in this Court. But this is immaterial, for upon an examination of the entire record it is impossible for us to find anything even suggesting abuse of discretion or manifest error in the conclusion reached by the trial Judge.

The third exception imputes error to the trial Judge in submitting issues to the jury for the enlightenment of the Chancellor and at the same time continuing the case for a trial of these issues until the next term of Court, at which term he is not assigned to preside.

The motion made by the defendants expressly recites that it is made pursuant to the terms of section 593, Code 1932, which provides that in all equity causes "the presiding judge may, in his discretion, cause to be framed an issue or issues of fact, to be tried by a jury"; such issues to be tried at the same term of Court, "Provided, That a continuance may be ordered by the court in proper cases". This section further stipulates that the findings of fact upon such issues by the jury shall be conclusive of the same, except that new trials may be granted according to the practice in other jury trials and the right to appeal to the Supreme Court from final judgment is preserved. As above stated, the framing of issues under this section is explicitly in the discretion of the presiding Judge, and in the case at bar Judge Thurmond declined so to submit issues, and from his ruling on this point there has been no appeal.

Judge Thurmond, however, did conclude that the cause was one in which it would be proper to submit all four of the issues stated in the notices of the respective parties, for the enlightenment of the Chancellor, according to the time honored practice of Courts of equity. This was likewise a matter in his discretion, and the exception under consideration does not charge even by implication any abuse of discretion, but if it could be so construed, we find no such abuse. However, the principal error...