Murphy v. Murphy, 20466

• Citation: 236 S.E.2d 417,269 S.C. 101
• Decision Date: 13 July 1977
• Docket Number: No. 20466,20466
• Court: United States State Supreme Court of South Carolina
• Parties: Lurline F. MURPHY, Respondent, v. Caleb MURPHY, Jr. Appellant.

Page 417

236 S.E.2d 417

269 S.C. 101

Lurline F. MURPHY, Respondent, v. Caleb MURPHY, Jr. Appellant.

No. 20466.

Supreme Court of South Carolina.

July 13, 1977.

Betty M. Sloan, Columbia, for appellant.

Jack F. McGuinn, Columbia, for respondent.

RHODES, Justice:

The basic question involved in this appeal is whether a county judge has the authority to entertain an action which contains the same issues previously dismissed by another judge of the same court having concurrent jurisdiction. We hold that no such authority exists and reverse.

In the present case the respondent had commenced an action on June 2, 1976, for a divorce on the grounds of adultery. She alleged in her petition that such act had occurred on May 25, 1976, and she also named the individual who allegedly participated in the adultery. Judge Owens T. Cobb, Jr., Associate Judge of the Richland County Court, issued a Rule to Show Cause pursuant to the petition and made it returnable before him on July 9, 1976. The petition was duly answered, and the appellant appeared with his attorney at the time and place specified in the Rule. The respondent also appeared and was represented by counsel.

The parties continued to live in the same residence from the time of the commencement of the action until and including the day of the hearing on the Rule to Show Cause. At the hearing, this fact was brought to the attention of the trial judge at a conference between counsel and the court. Upon inquiry by the court, this fact was confirmed by the parties' respective counsel. The court then issued its order of dismissal as to both the Rule and the petition, even though the appellant had not pled condonation as a defense. See Lanier v. Lanier, 251 S.C. 117, 160 S.E.2d 558 (1968); McLaughlin v. McLaughlin, 244 S.C. 265, 136 S.E.2d 537 (1964). This order was reduced to writing and signed on July 19, 1976. It was duly filed and a copy was forwarded to counsel for the respondent on July 23, 1976.

The respondent did not appeal to this Court from the order of dismissal executed by Judge Cobb but, instead, commenced an action before the Honorable Legare Bates, Senior Judge of the Richland County Court. In this subsequent action, respondent sought relief from Judge Cobb's order of dismissal under S.C. Code § 10-1213 (1962). In the alternative, respondent asked for a divorce a mensa et thoro. The petition contained precisely the same allegation of adultery as contained in the petition originally filed with Judge Cobb that is, the same date and with the same person. Attached to the new petition was a Rule to Show Cause returnable on August 4, 1976, signed by Judge Bates, requiring the appellant to show cause why the order of dismissal signed by Judge Cobb should not be set aside. On August 24, 1976, the appellant was served with an order of enforcement predicated on an affidavit, which forbade the appellant to go upon his residential premises and which provided that he should be immediately taken into custody if found thereon.

The Richland County Court, from which this appeal is taken, was established by special election and an act of the General Assembly in 1917. See 1917 Acts and Joint Resolutions of the General Assembly, p. 156. That act and subsequent amendments provided for the jurisdiction of...