Morgan v. Smith

• Decision Date: 01 October 1900
• Citation: 37 S.E. 43,59 S.C. 49
• Parties: MORGAN et al. v. SMITH et al.
• Court: South Carolina Supreme Court

37 S.E. 43

59 S.C. 49

MORGAN et al. v. SMITH et al.

Supreme Court of South Carolina

October 1, 1900

Appeal from common pleas circuit court of Greenville county; J. C Klugh, Judge.

Action by Nannie B. Morgan and another against Beauregard Smith and others. From a decree defendant Beauregard Smith appeals. Reversed.

Haynesworth Parker & Patterson, for appellant.

Blythe & Blythe, for respondents.

JONES J.

The object of this action was to enforce payment by the defendant Beauregard Smith of $600, which sum was alleged to be due and a charge upon certain real estate devised to the defendant under the will of Henry M. Smith, deceased. The master found against the plaintiffs, but, on exception to the circuit court, Judge Klugh, on December 10, 1898, reversed the master, and decreed that two-thirds of the $600 named in the will is a charge upon the lands devised to defendant, and to be accounted for, subject to the findings of the master upon a matter recommitted to the master, viz. whether the defendant had paid out of his own funds a claim of $125 against the estate of the testator, with a view to give him credit for such payment and interest against the said $600. Under this order the master took testimony, and reported that the amount due defendant for payments in behalf of the testator's estate amounted, with interest, to $264.56. On exceptions to this report, the circuit court judge, Ernest Gary, overruled the same, and decreed for a sale of the premises, and the payment by the defendant of the sum of $400 as a charge thereon. Within 10 days after the rising of the court at which the decree of Judge Klugh was rendered defendant's counsel gave notice of intention to appeal therefrom; but concluding that such decree was not final, and was reviewable after a final decree in the case, they did not proceed further, and so notified counsel for plaintiffs. Thereafter plaintiffs' counsel procured an order from the clerk of this court dismissing such appeal for failure to file return. Within due time after the filing of the decree by Judge Gary, defendant's counsel gave notice of appeal, and exceptions to this decree and to the decree of Judge Klugh.

A preliminary question is whether the order of Judge Klugh can be reviewed on appeal from the decree of Judge Gary. We think so. The decree or order of Judge Klugh was not final, as it left for adjustment a matter essential to the determination of the extent of the liability of the defendant. Such order was intermediate. The decree of Judge Gary was the final decree fixing the amount for which the defendant was liable. On appeal from such final decree, it is competent for this court to review the intermediate decree of Judge Klugh, as such decree necessarily...