Spencer v. National Union Bank of Rock Hill

• Decision Date: 09 January 1940
• Docket Number: 14994.
• Parties: SPENCER v. NATIONAL UNION BANK OF ROCK HILL, S. C., et al.
• Court: South Carolina Supreme Court

6 S.E.2d 755

192 S.C. 355

SPENCER v. NATIONAL UNION BANK OF ROCK HILL, S. C., et al.

No. 14994.

Supreme Court of South Carolina

January 9, 1940

Finley & Spratt, of York, and Wm. M. Wilson, of Charleston, for appellant.

Melton & Belser, of Columbia, and Dunlap & Dunlap and Spencer & Spencer, all of Rock Hill, for respondent.

STABLER Chief Justice.

This case has been here before. 189 S.C. 197, 200 S.E. 721, 723. In disposing of the main question presented by that appeal this Court held that the allegations of the amended complaint "unquestionably presented a case of election of the alternative remedy of specific performance in equity or damages at law for the breach" of the contract to reconvey certain realty, and affirmed the order of Judge Greene requiring the plaintiff to elect between the two remedies or causes of action. Thereafter, counsel for the defendants moved before Judge Sease to require the plaintiff to make and announce his election; and also that the case be placed "for hearing upon the appropriate docket at the opening of the next succeeding term of the Court for York County, or in the alternative, as to the Court may seem best if the cause of action for specific performance be elected to refer the case to a suitable Referee". Upon the hearing of the motion, Judge Sease, in accordance with the announcement of plaintiff as to his election, ordered the case to "proceed to trial upon the said cause of action for specific performance, together with such other claims for damages or for an accounting as may be proper on the equity side of the Court in connection with the said cause of action for specific performance". He, however, refused the latter part of the motion, leaving the matters referred to there to be passed upon by the Judge before whom the case should be called for trial. From this order, dated February 20, 1939, there was no appeal.

On April 25, 1939, counsel for the defendants gave notice that they would move before the presiding Judge, upon the call of the matter, to strike the cause from Calendar 1 and to place it on Calendar 2, upon the ground that it had been improperly docketed. Judge Gaston, who heard the motion referred the case to W. D. Douglas, Esq., a member of the Winnsboro bar, "as Special Referee to take the testimony and to hear and determine all issues of law and fact", upon the cause of action as above stated. He said: "From the pleadings and my knowledge of the case obtained from various hearings before me and orders granted by me, I am convinced that in this cause, in connection with the question of specific performance there are questions of law and a long accounting to be had, and I feel that the most expeditious way to dispose of the case is by a reference." While no formal order was issued thereabout, the Court made a written memorandum on Calendar 1 to transfer the cause to Calendar 2. This appeal followed.

The appellant states three exceptions, the first of which charged the trial Judge with error in making a compulsory order of reference, his contention being that he is entitled, in view of the character of the case, "to a trial by a jury as a matter of right".

A discussion of this question at length is unnecessary. An action for specific performance is one of equitable cognizance. The plaintiff...