Montgomery v. Robinson

• Decision Date: 05 November 1912
• Citation: 76 S.E. 188,93 S.C. 247
• Parties: MONTGOMERY v. ROBINSON.
• Court: South Carolina Supreme Court

76 S.E. 188

93 S.C. 247

MONTGOMERY v. ROBINSON.

Supreme Court of South Carolina

November 5, 1912

Appeal from Common Pleas Circuit Court of Richland County; John S Wilson, Judge.

Action by Frank T. Montgomery against Salina Robinson. From a decree for plaintiff, defendant appeals. Appeal dismissed.

Lyles & Lyles, of Columbia, for appellant. W. H. Muller, of Dillon and Rembert & Montieth, of Columbia, for respondent.

HYDRICK J.

This action for injunction was commenced on April 6, 1911. From the view which we take of this appeal, it will not be necessary to state the contentions of the parties at great length.

In substance, plaintiff alleges that defendant leased a certain building and lot on Main street, in the city of Columbia, to Carl Davenport and his associates, who were to be incorporated for the purpose of conducting theatrical and vaudeville performances for a term of five years from March 3, 1909; that Davenport took possession and erected certain buildings provided for in the lease, and otherwise complied with its terms; that he became involved in debt, and at the suit of one of his creditors the lease and other of his property was sold on February 10, 1911, by the master, under an order of court, to S. A. Lynch, who took possession under the lease, and paid the rent and otherwise complied with its terms; that on March 25, 1911, Lynch sold and assigned the lease, together with other property, to plaintiff, who took possession, under said lease, and was preparing to open the theater, which he had advertised extensively, and had invested large sums of money in the necessary appliances to make the place attractive, when defendant notified him to desist, and entered upon the premises and commanded his arrangements to be discontinued, and threatened to prosecute him, if he proceeded further; that, by reason of the facts stated, he would suffer irreparable damage, if defendant was not restrained from interfering with him in the performance of his business; that he had tendered the rent and was ready and willing to comply with the terms of the lease. On April 8, 1911, his honor, Judge Watts, granted the following order: "Upon hearing the complaint in the above-entitled action, and it appearing to my satisfaction that there is no presiding or resident judge, and it appearing to my satisfaction that plaintiff has stated a cause of action for injunction, now, upon motion of W. H. Muller, attorney for plaintiff, it is ordered that defendant, Salina Robinson, do show cause before Judge Copes at the courthouse in the city of Columbia on Friday, April 14th, at 10 o'clock in the forenoon, or as soon thereafter as counsel can be heard, why said injunction shall not issue. Ordered, further, that pending the said hearing the defendant, Salina Robinson, be, and she is hereby, enjoined and restrained from in any manner interfering with plaintiff in opening his show as advertised, or in any manner interrupting his arrangements by legal proceedings or otherwise. Ordered, further, that the plaintiff pending said hearing do not in any manner deface, materially alter, or change the walls of the said building, or any part thereof. This order is not to be construed, however, to prevent him from placing proper curtains, portieres, carpets, or such other decorations as he may deem proper. Ordered, further, that plaintiff enter into bond, or deposit in cash with the clerk of court, the sum of two hundred and fifty dollars, conditioned to hold the defendant harmless pending said restraining order." The defendant answered, denying some of the allegations of the complaint, and particularly the validity of the assignments of the lease, and alleging several grounds upon which the lease had been forfeited, for which cause she alleged that she did forbid plaintiff's use of the premises. Her answer was her return to the rule. On hearing the rule and return, his honor, Judge Copes, passed the following order: "The rule to show cause in the above-entitled matter came on to be heard before me this the 14th day of April, A. D. 1911, in accordance with the order of Judge Watts, bearing date 8th day of April, 1911, and, after hearing argument, it is ordered that the defendant, Salina Robinson, her agents and employés, be restrained and enjoined from interfering with the plaintiff in the use and operation of his theater under the lease in the complaint mentioned and described, pending the determination of the question of fact as to whether or not plaintiff, his agents or employés, have made any material alterations in the building in violation of the terms of the lease, the matter being referred to A. D. McFadden, master of Richland, solely to determine this question, all other questions made by the pleadings being determined by me in favor of the plaintiff. It is further ordered that the bond required by the order of Judge Watts be continued pending the determination of this question. Ordered, further, that plaintiff do store the furniture, etc., as prescribed in the lease in the upper story of the building as prescribed in the lease, and that the rent be paid as provided in said lease."

Thereafter on May 19, 1911, on defendant's motion, she was allowed to file a supplemental answer, and, on her motion, another order of reference was made, requiring the master to report the testimony on all the issues made by the pleadings. While this reference was pending before the master, and after several references had been held, and a good deal of the testimony had been taken, defendant served notice that she would move the court, his honor, Judge Wilson, presiding, on December 12, 1911, on affidavits served therewith, for an order requiring plaintiff to surrender the premises to her on the...