Smith v. Lowery
| Decision Date | 05 March 1900 |
| Citation | 56 S.C. 493,35 S.E. 129 |
| Parties | SMITH v. LOWERY. |
| Court | South Carolina Supreme Court |
APPEAL—CONSENT ORDER.
An appeal will not lie from an order appointing a receiver, entered by consent, though it was unauthorized by the pleadings.
Appeal from common pleas circuit court of Chesterfield county; R. C. Watts, Judge.
Action by Ellen P. Smith against W. T. Lowery. From an order appointing a receiver, defendant appeals. Affirmed.
Stevenson & Matheson, for appellant.
Edward Mclver and W. B. Pollock, for respondent.
The complaint in this case seeks to set aside, for alleged irregularities, a tax sale of land, and deed thereunder, and to restrain the defendant, claiming under said deed, from collecting the rent from plaintiff's tenant in possession, or in any manner interfering with said tenant's crop on said premises. The defendant answered, denying the alleged irregularities in the tax sale, and claiming the title under said deed. Upon hearing return to a rule to show cause why the defendant should not be enjoined as prayed for, Judge Watts granted an order appointing G. J. Redfearn, clerk of the court, as receiver of the rents and profits of said premises pending the litigation. From this order the defendant appealed, upon the following grounds: (1) Because his honor erred in appointing a receiver of the land in dispute, when the rule to show cause only required the defendant, Lowery, to show cause why an injunction should not be granted against his interfering with the rents of 1898; (2) because the action as set forth by the pleadings was merely an action at law, and did not warrant the appointment of a receiver; (3) because the court has by its order, on a preliminary motion, deprived defendant, Lowery, of the possession of land to which he is presumed to have title, before the question of title has been tried, and appointed a receiver until the trial of the cause, upon a rule to show cause why an injunction should not be granted against collecting rents for 1898, and nothing else, and thereby committed error.
By an order of this court, made after due notice, the case was recommitted to the circuit court for amendment by a statement from the trial Judge as to what occurred before him when the order appointing a receiver was made. Pursuant thereto, the trial judge reported as follows: ...
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...v. All, 86 S.C. 586, 68 S.E. 824 (1910) (court will not entertain appeal from an order issued with parties' consent); Smith v. Lowery, 56 S.C. 493, 35 S.E. 129 (1900) (same); Parsons v. Gibbes, 59 S.C. 215, 37 S.E. 753 (1901) (same); Calcutt v. Calcutt, 282 S.C. 565, 320 S.E.2d 55 (Ct.App.1......
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