Sternberger v. Mcsween, CASE No. 900.

• Citation: 14 S.C. 35
• Decision Date: 02 July 1880
• Docket Number: CASE No. 900.
• Parties: STERNBERGER v. MCSWEEN.
• Court: United States State Supreme Court of South Carolina

14 S.C. 35

STERNBERGER

v.MCSWEEN.

CASE No. 900.

Supreme Court of South Carolina.

Jul. 30th, 1880.

1. On appeal to the Circuit Court from a trial justice's judgment, where the amount involved exceeds $10, there must be a trial de novo, unless appellant states in his notice of appeal that such appeal is taken upon questions of law only.

2. The trial being de novo the parties are not restricted to a repetition of the evidence offered in the court below.

3. A lienee, under the agricultural lien law, is not entitled to recover from an innocent purchaser the value of property covered by the lien, sold by such purchaser before action brought.

4. An unrecorded chattel mortgage is of no avail against a subsequent purchaser for valuable consideration without notice.

5. Under the act of 1878, (16 Stat. 411,) which requires agricultural liens to be filed in the office of the register of mesne conveyance, and an index thereof to be kept by that officer, a lien filed and immediately thereafter withdrawn by the lienee and retained in his possession, is not constructive notice to third parties, notwithstanding the proper entry appears in the index.

6. The presumption of law that an officer has done his duty may be rebutted by proof.

7. The lienee cannot avoid the consequences of the register's default in permitting the lien to be taken from its file, when the removal was the act of the lienee himself.

8. This court cannot sanction the withdrawal of a paper from the files of a public office, even though by permission of the officer in charge.

Before HUDSON, J., Darlington, March, 1880.

This was an action instituted before a trial justice by H. Sternberger to recover from John McSween $45.30, the value of a bale of cotton purchased by McSween from one L. Morris, and re-sold before action brought. The cotton had been raised by Morris during the year 1879, and plaintiff claimed that it was subject to an agricultural lien in his favor, by virtue of the following agreement:

“Whereas, it is agreed by and between H. Sternberger, merchant, and L. D. Morris, all of said county and state, that the said H. Sternberger is to make advances of provisions and supplies to the said ________, not to exceed in amount seventy-five dollars; the advances being for the purpose of enabling the said L. D. Morris more effectually to carry on the cultivation of his farm and produce a crop therefrom, in said county, on which he is engaged at work for the present year.

Now know all men by these presents, that I, the said L. D. Morris, for and in consideration of the said advances to be made by the said H. Sternberger, whether at one time or at various times through the current year, have bargained, sold and pledged, and by these presents do bargain, sell and pledge unto the said H. Sternberger, all and every portion of the cotton, corn, peas, small grain, fodder, or other crops which I may produce on said farm the present year, or so much thereof as may be necessary to fully pay and satisfy the amounts advanced to me under this agreement, save and except enough of same to satisfy the rent for the land, if there be any rent due on the same; and the said crop or crops to be prepared for market and delivered to said H. Sternberger between the months of August and October, the present year.

In witness whereof, we, the contracting parties, have hereunto set our hands and seals this 13th day of January, 1879.

“H. STERNBERGER. [L. S.]

“L. D. MORRIS. [L. S.]

“Executed in the presence of

C. ALEXANDER.”

This paper was filed in the office of the clerk of the court, as ex officio register of mesne conveyances, and the following entry was made in the Index to Liens:

“L. D. Morris-H. Sternberger advances-$75.00-Jan'y 17, 1879.”

Plaintiff had no knowledge, previous to the sale to defendant, that Morris was disposing of his crop, and defendant had no actual notice of plaintiff's lien until after he had bought and sold, in the usual course of business. The cotton was not planted at the date of the agreement.

The trial justice gave judgment for plaintiff for the sum demanded. The defendant gave notice of appeal, upon grounds which raised questions of law only, but he did not say so in totidem verbis in his notice.

In the Circuit Court the presiding judge held that there must be a trial de novo, and permitted proof to be offered that the agreement, after being filed and indexed, was immediately withdrawn by Sternberger and retained in his possession until after this action was commenced-a fact not shown in the trial below.

The Circuit judge held that the agreement was substantially an agricultural lien; that plaintiff could not recover the value of the cotton from defendant, who had sold before action brought; and that the index was not constructive notice to defendant of the lien. He gave judgment for defendant, with costs. Plaintiff appealed. The grounds of his appeal and the positions assumed in the argument are sufficiently stated in the opinion of the court, except the last position, which is thus stated by appellant:

“We say that the clerk of the court is supposed to have done his duty; after receiving and filing the paper, if he chose to give the same back to Sternberger, when it was his duty to retain the same, are we to suffer?”

Mr. J. J. Ward, for appellant.

Messrs. Boyd & Nettles, contra.

The opinion of the court was delivered by

MCIVER, A. J.

The object of this action is to recover the value of a bale of cotton, sold to the defendant by one Morris, upon which the plaintiff claimed to have a lien, by virtue of an agreement in writing, between himself and said Morris, which, it is insisted, amounts to what is commonly called an agricultural lien, under the provisions of the act of March 4th, 1878. 16 Stat. 410. This agreement, bearing date January 13th, 1879, a copy of which is set out in the case, was received in the clerk's office on January 17th, 1879, and so marked, and was indexed by the name of the parties, the amount of the advances and the date of its entry in that office; but as soon as it was indexed it was taken out of the office by the plaintiff and remained in his possession until the trial in the court below. The action was originally instituted before a trial justice, and, he having rendered judgment for the plaintiff, the defendant gave notice of appeal to the Circuit Court upon various grounds, which are fully set out in the case. That court proceeded to hear the case de novo, and, upon such hearing, rendered judgment for the defendant, and from that judgment this appeal has been taken.

Various exceptions were taken to the rulings and the final decision of the Circuit judge, and the questions thus raised will be considered in their order. The first question is as to the right of the defendant, who was the appellant in the Circuit Court, to have a trial there de novo. It is contended here that as the grounds of appeal from the judgment of the trial justice raised questions of law only, the case could not be tried de novo in the Circuit Court. This position is based, as we understand it, upon the language of the proviso to Section 369 of the code of procedure. That section provides that on appeal from a judgment of a trial justice, where the amount in controversy exceeds the sum of $10, as it does here, “ a new trial shall be had in the Circuit Court in the following appellate cases: 1. When the judgment was rendered upon an issue of law joined between the parties. 2. When it was rendered upon an issue of fact joined between parties, whether the defendant was present at the trial or not.” Then follows the proviso, containing a mere permission to appellant to waive his right to a new trial, by stating in his notice of appeal that such appeal is taken upon questions of law only. The only person who can avail himself of this permission is the appellant, and unless he does so in the manner prescribed by the statute, the code declares that “a new trial shall be had” even in cases “where the judgment was rendered upon an issue of law joined between the parties.” We are unable to perceive the force of the argument drawn from the fact that Section 370 of the code requires the appellant to serve a notice of appeal “ stating the grounds” upon which the appeal is founded. The...