Montague v. Best
| Decision Date | 27 March 1903 |
| Parties | MONTAGUE. v. BEST et al. |
| Court | South Carolina Supreme Court |
reference—jury—waiver.
1. A judge at chambers can, without consent, make a reference of a case involving an examination of a long account.
2. Where defendants did not appeal from an order submitting issues to a master, but submitted all their defenses before him, they waived whatever right they had under an order submitting certain issues to a jury.
Appeal from Common Pleas Circuit Court of Barnwell County.
Action by H. W. Montague, administrator of W. P. Wilcox, against Susan H. and B. B. Best From an order referring the case to the master, defendants appeal. Reversed.
Davis & Best, for appellants.
L. L. Tobln, for respondent
This is an action to foreclose a real estate mortgage, and the main question now is as to the construction and effect of an order of reference to the master. The defendants, having pleaded a general denial and payment, upon notice, obtained from Judge Buchanan, at a regular term of the court for Barnwell county, an order submitting the question of payment to a jury. Afterwards, at chambers, in Bamberg county, plaintiff moved to set aside that order, and for an order of reference to the master, on the ground of excusable neglect in not appearing and opposing the motion to submit issue of payment to jury, and upon the further ground that the issues of fact in said action would require the examination of a long account between the parties; and, as the result of the motion, the following order was granted: "After hearing argument and pleadings and affidavit for the. motion to refer and prove issues, I am satisfied there should be a reference After the filing of the order, the master proceeded to hold references, and construed said order as referring all issues of law and fact, and no question was raised before the master as to the validity or construction of said order. On the contrary, defendants procured from the master an order allowing answer to be amended so as to plead accord and satisfaction, and proceeded before the master in all respects as if all issues of law and fact had been referred. After testimony and argument upon the issues, the master filed his report recommending foreclosure and sale; finding against defendants on the questions of law and fact To this report, defendants excepted, among others, upon the ground that Judge Buchanan had no jurisdiction to refer Issues to the master without the consent of all parties, and that such consent had not been given.
The cause came on to be beard before Judge Townsend, at summer term of court for Barnwell, 1902, and Judge Townsend sustained defendants' contention that the master had no right to hear and determine issues ( Judge Buchanan's order of reference as one to take testimony, merely), and was about to proceed to hear the cause upon the testimony as reported by the master, when both sides gave notice of Intention to appeal, and the further hearing was suspended. The plaintiff contends that Judge Townsend erred in construing the order of Judge Buchanan as merely an order to take testimony, and we agree with plaintiff in this. The order must be construed with reference to the matters before the judge at that time. Plaintiff, it must be assumed, made good his claim that the case was one which would involve the examination of a long...
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Momeier v. John McAlister, Inc.
... ... analogy. And where issues are referred under that section ... they do not survive the term unless continued by special ... order. Montague v. Best, 65 S.C. 455, 43 S.E. 963, ... 964. The Court said in the case cited that whether a special ... order continuing the issues along with the ... ...
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Jefferson Standard Life Ins. Co. v. Boddie
...the aid of the Judge who framed them, and do not bind the trial Judge before whom the cause may finally be heard. And see Montague v. Best, 65 S.C. 455, 43 S.E. 963; Momeier v. John McAlister, Inc., 190 S.C. 529, S.E.2d 606. When the trial was entered upon, but before the empaneling of a ju......
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Greenwood Lumber Co. v. Cromer
...rule 28 of the circuit court, the matter is still, by express terms of the statute in the discretion of the court'. In Montague v. Best, 65 S.C. 455, 458, 43 S.E. 963, 964, the Court 'It would seem that issues in chancery cases, framed under this section, were intended for the aid of the ju......
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Carmichael v. Carmichael
... ... Was ... Judge Prince bound by the order of Judge De Vore? The ... appellant admits that this court said, in Montague v ... Best, 65 S.C. 455, 43 S.E. 963: ... "It would seem that issues in chancery cases framed ... under this section were intended for the aid of ... ...