Monteith v. Harby

• Decision Date: 06 May 1938
• Docket Number: 14680.
• Citation: 197 S.E. 215,187 S.C. 168
• Parties: MONTEITH v. HARBY et al. McKINLEY v. SAME.
• Court: South Carolina Supreme Court

197 S.E. 215

187 S.C. 168

MONTEITH v. HARBY et al.

McKINLEY v. SAME.

No. 14680.

Supreme Court of South Carolina

May 6, 1938

Appeal from Common Pleas Circuit Court of Sumter County; A. L Gaston, Judge.

Two separate actions by Mildred Dutton Monteith and Dorothy Dutton McKinley against H. J. Harby and others. From an order transferring the cases from the equity calendar to the law calendar, plaintiffs appeal.

Affirmed.

L. D Jennings, of Sumter, for appellants.

M. M Weinberg, Epps & Epps, and Lee & Moise, all of Sumter, for respondents.

STABLER Chief Justice.

The plaintiffs, asserting that these two cases, the complaints in which are practically identical, are suits in equity, had them docketed on calendar 2; the defendants thereupon claiming that the cases are actions at law, applied for an order transferring them to calendar 1. Judge Gaston, who heard the matter, in granting the motion, said: "I am satisfied that this is not a suit in equity but that the facts alleged in the complaint are very similar to, and in certain respects identical with, the allegations in the case of Bowen v. Strauss et al., 175 S.C. 23, 178 S.E. 252. That being so, I feel that I am bound by the decision of the Supreme Court in that case, in which it was held that it was an action at law to recover damages for an alleged tort." The appeals from this order were heard together here, and will be disposed of in one opinion.

We have carefully compared the complaint before us with the pertinent allegations of the complaint in Bowen v. Strauss et al., 175 S.C. 23, 178 S.E. 252, and are satisfied that Judge Gaston was right in the conclusion reached by him. The allegations of fact contained in the two complaints are almost the same. That is to say, the wrongs alleged in the Bowen Case are practically identical with those charged in the cases at bar. It is true that in the cases here it is alleged that "an accounting will be necessary," but no facts are stated which tend to show that any long or complicated accounting will be required. Furthermore, upon trial of the case, should such a fact appear, the court may have the matter determined in any proper manner.

But counsel for the appellants contends that Winn v. Harby et al., 171 S.C. 301, 172 S.E. 135, which this court held was a suit in equity, is decisive of the question here raised, for the reason that the "allegations in the case at bar are in substance...