Speizman v. Guill
Decision Date | 10 May 1943 |
Docket Number | 15539. |
Citation | 25 S.E.2d 731,202 S.C. 498 |
Parties | SPEIZMAN v. GUILL. |
Court | South Carolina Supreme Court |
Appeal from Common Pleas Court, of Richland County; A. W. Holman County Judge.
Action by Morris Speizman against Berlin J. Guill to assert certain rights under a conditional sales contract concerning balance of purchase money for laundry and cleaning machinery and equipment, wherein defendant counterclaimed. From a general order of reference issued on plaintiff's motion, defendant appeals.
The order of Judge Holman directed to be reported follows:
This is an action to foreclose a chattel mortgage and the motion before me is to refer the cause to the Master.
The defendant sets forth in his answer a counterclaim and asks judgment against the plaintiff. The defendant takes the position that by reason of his counterclaim he is entitled to a jury trial and calls the Court's attention to the Code and also to the case of Woodruff Machinery Manufacturing Co. v. Timms, 93 S.C. 99, 76 S.E. 114. The case cited holds that a defendant has the right to interpose a counterclaim, but does not make any holding with reference to the question of a jury trial. Of course, the defendant has the right to interpose a counterclaim, but the latest case on the question of the right to a trial by jury is that of Aiken Mortgage Co. v Jones, 197 S.C. 245, 15 S.E.2d 119, 121, in which the Court held as follows:
It is, therefore, my opinion that I am bound by the Aiken Mortgage Company case. However, if upon the hearing before the Master it be developed that there is an issue for a jury to pass upon the Master may so recommend to this court.
It Is, Therefore, Ordered that the case be referred to Hon. Harry M. Lightsey, Master for Richland County, to hear and determine all the issues of law and fact and to report all special matters with all reasonable diligence and to make any recommendations he may see fit regarding any issue or issues of fact to be submitted to a jury.
C. T. Graydon and F. Ehrlich Thomson, both of Columbia, for appellant.
Melton & Belser and T. P. Taylor, all of Columbia, for respondent.
WM. H. GRIMBALL, Acting Associate Justice.
This action was commenced by plaintiff against defendant to assert certain rights claimed by plaintiff concerning a balance of purchase-money alleged to be secured by certain laundry and cleaning machinery and equipment, sold by plaintiff to defendant under a conditional sale or title-retention contract. Whether those rights, as set forth in the complaint, constitute a legal or an equitable cause of action is the question. The defendant answered admitting certain allegations of the complaint, denying other allegations and setting up a counterclaim for damages for alleged delay, failure to deliver some of the parts, defects and unfitness for use of certain parts and in other respects, to his damage in the sum of three thousand dollars.
Plaintiff thereafter moved for an order referring the cause to the Master to take testimony, which defendant opposed. The judge below issued a general order of reference. Let it be reported. From such order this appeal has been taken by defendant.
The respective parties are in disagreement as to the character of the action and the nature of the cause of action set forth in the complaint. However, in the appeal briefs both sides have stated the questions for decision upon this appeal in the same words, as follows:
In order to determine the character of the cause of action it is necessary to examine the complaint, which is as follows:
1 Prosperity Flat Work Press, Lot No. 1094, Serial No. 61340.
1 Rebuilt 32 x 48 Washer, Lot No. 1064.
1 Collar & Cuff Prosperity Press, Lot No. 1115.
15 Foot Shafting 1"11/16" bore at 25 cents per foot.
3 15" Hangars at $3.50 each.
1 Large Master Pulley.
1 American 30" Extractor, belt driven.
1 Talley 36 x 96 Wood Washer (used).
1 New Bosom Press, Model NLB"1.
1 New Double Sleever (DS"1).
1 Heubsch Tumbler.
1 Prosperity 39" tapered buck foot power press.
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... ... it was error to consider the other pleadings, he calls ... attention to the case of Speizman v. Guill, 202 S.C ... 498, 25 S.E.2d 731, where the Court, in effect, held, that ... where a complaint states a case in equity, the interposition ... ...
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