Stokes v. Murray

• Decision Date: 15 March 1913
• Citation: 77 S.E. 712,94 S.C. 18
• Parties: STOKES et al. v. MURRAY.
• Court: South Carolina Supreme Court

77 S.E. 712

94 S.C. 18

STOKES et al. v. MURRAY.

Supreme Court of South Carolina

March 15, 1913

Appeal from Common Pleas Circuit Court of Lee County; Henry Mullins Special Judge.

"To be officially reported."

Action by J. L. Stokes and others against William M. Murray. From an order granting a new trial, and setting aside an order of nonsuit, defendant appeals. Reversed and remanded.

Thos H. Tatum, of Bishopville, J. B. McLauchlin, of Columbia, and A. B. Stuckey, of Sumter, for appellant. L. D. Jennings, of Sumter, and McLeod & Dennis, of Bishopville, for respondents.

WATTS J.

This was an action for the recovery of real estate and damages commenced in July, 1909. An action for the recovery of the same property was commenced by an ancestor of the plaintiffs in 1905, who died during the pendency of the suit, and the plaintiffs were substituted. Upon the first trial of the case, plaintiffs took a voluntary nonsuit, and afterwards brought this action. This is the second action. The case was called for trial at the spring term of court, 1910, for Lee county before the honorable Henry Mullins, special judge, and a jury. At close of plaintiffs' testimony, the judge granted a nonsuit. Immediately after nonsuit was granted, the plaintiffs served notice of intention to appeal to this court. On the same day that this case was ended the court of common pleas for Lee county adjourned sine die. On the 14th day of April, 14 days after adjournment of court, Special Judge Mullins, without any motion or hearing thereon, but of his own motion, filed an order granting a new trial. Defendant served notice of intention to appeal from this order, but failed to perfect it. When the next term of court for jury trials convened for Lee county, and this case was called for trial, the presiding judge dismissed the appeal holding that it was mandatory under the law, and not a matter within his discretion. All of the objections made by the defendant to going to trial being overruled by the court, the trial proceeded and finally terminated in the court directing a verdict for the plaintiffs.

An appeal was taken and the exceptions, 19 in number, were made. It is unnecessary to consider them all. Exceptions 3, 4, 5 12, 13, and 14 question the validity of Judge Mullins' order in granting a new trial, and in setting aside the order of nonsuit made by him in open court during the trial after court had adjourned sine die, and he had left the circuit and made an order without notice to any one and on his own motion. These exceptions must be sustained. By law the court of common pleas for Lee county adjourned on the 2d day of April, as an investigation of the acts of the Legislature of 1908, fixing the time of courts for the Third circuit, will show. Judge Mullins granted the nonsuit on April 1, 1910, in open court. Court adjourned sine die April 2, 1910. On April 14, 1910,...