Muckenfuss v. Fishburne

• Decision Date: 03 August 1903
• Citation: 46 S.E. 537,68 S.C. 41
• Parties: MUCKENFUSS v. FISHBURNE et al.
• Court: South Carolina Supreme Court

46 S.E. 537

68 S.C. 41

MUCKENFUSS v. FISHBURNE et al.

Supreme Court of South Carolina

August 3, 1903

Appeal from Common Pleas Circuit Court of Dorchester County; Gary Judge.

Foreclosure by Harriet E. Muckenfuss against Helen M. Fishburne and Sophie F. S. Marion. Defendants appeal from order refusing to set aside judgment of foreclosure. Affirmed.

Julian Fishburne, for appellants. Burke & Erckemann and Simons Siegling & Capplemann, for respondent.

WOODS J.

This action was instituted January 3, 1901, for the foreclosure of a mortgage on two lots situated in the town of Summerville S. C., given by Helen M. Fishburne, March 3, 1894, to secure the payment of a bond executed to the plaintiff by Helen M. Fishburne and Sophie F. S. Marion. Plaintiff also demanded judgment against the defendants for the amount due on the bond. Mrs. Fishburne, in her answer, denies all liability under the bond and mortgage, alleging that she signed the same, at the request of her husband, as guarantor or surety of her codefendant, Mrs. Marion; that the money borrowed on said security was borrowed and used for the payment of the individual debts and liabilities of Mrs Marion, and that no part thereof went into her hands, or was used for her individual benefit or that of her separate property; that at the time of signing the bond and mortgage she was a married woman, and that under the law then in force she could not bind or make herself liable on any contract or obligation except those relating to and for the benefit of her separate estate. The answer of Mrs. Marion, as far as it goes, is to the same effect. By consent of the parties, it was referred to the master of Dorchester county to take the testimony in the cause and report the same to the court. The master's report was filed February 1, 1902. Mr. D. H. Behre, who was defendants' counsel at that time, filed exceptions to this report. The cause came on for trial at the February term, 1902, of the court of common pleas for Dorchester county, Judge Townsend presiding. Messrs. Izlar Bros., who originally represented the defendants, had withdrawn from the case, and had been succeeded by Mr. D. H. Behre. An accident had recently befallen Mr. Behre, which prevented his attendance, and no counsel appeared for defendants. In view of the circumstances the case was continued, and, to speed the hearing of the cause upon its merits, the court ordered that, besides the testimony already taken and filed, the master take and report such additional testimony as might be offered, and file his report of same at least 10 days before the next term of court. The defendants appealed from this order, and upon the hearing in this court the judgment below was affirmed. See Muckenfuss v. Fishburne, 65 S.C. 573, 44 S.E. 77.

While this appeal was pending at the May term of court, 1902, Judge Gage presiding, the case was again called for trial. Mr Julian Fishburne, agent of the defendants, appeared in their behalf, and asked for a continuance, stating that he had employed Maj. Jas. F. Hart as counsel, and as explanatory of his absence exhibited a telegram from him, of which the following is a copy: ""Yorkville, S. C., May 17th, 1902. To Julian Fishburne, Summerville, S.C. Cannot go to Georges, been sick all week. Sorry. [Signed] Jas. F. Hart." The presiding judge refused the motion on the ground that he was satisfied it was for delay, and without merit, and proceeded to a trial of the cause on the pleadings and testimony, holding that the appeal from the order of Judge Townsend did not arrest the further progress of the action. In a decree filed May 19, 1902, the exceptions to the master's report were overruled, and it was ordered that judgment be entered against the defendants for the amount found due on the bond and mortgage, and that the mortgaged property be sold by the master on sales day in July, 1902. The defendants gave notice of appeal from this order and decree, but failed to perfect their appeal within the required time. Notice was afterwards given of a motion in this court to extend the time in which to serve the case and exceptions, but, the defendants failing to appear, the motion was dismissed ...