Swygert v. Wingard

• Decision Date: 26 February 1897
• Citation: 26 S.E. 653,48 S.C. 321
• Parties: SWYGERT. v. WINGARD et al.
• Court: South Carolina Supreme Court

26 S.E. 653

48 S.C. 321

SWYGERT.

v.WINGARD et al.

Supreme Court of South Carolina.

Feb. 26, 1897.

Appeal—Assignment or Error—Trespass— What Constitutes.

1. An assignment that the court "erred, as a matter of law, in dismissing the complaint, " is too indefinite.

2. Leasing land to another, while plaintiff was in possession under a prior lease is not a trespass.

Appeal from common pleas circuit court of Lexington county; Buchanan, Judge.

Action by John S. Swygert against Paul Wingard and others. From an order dismissing the complaint, plaintiff appeals. Affirmed.

Andrew Crawford and G. T. Graham, for appellant.

Le Roy F. Youmans and John S. Verner, for respondents.

McIVER, C. J. This was an action brought by the plaintiff to recover damages for certain trespasses alleged to have been committed by defendants on a certain tract of land, claimed to be in possession of the plaintiff, as tenant of the defendants F. W. Wagener & Co. In the first paragraph of his complaint the plaintiff alleges that during the years 1893 and 1892, and for several years prior thereto, he was a tenant of F. W. Wagener & Co., on a certain tract of land which had been purchased by said Wagener & Co., under a judgment of foreclosure of mortgage obtained by them against the plaintiff. In the second paragraph the allegation is that all of the defendants named in the title of the case, except Paul Wingard, compose the firm of F. W. Wagener & Co. The third paragraph is in the following language: "That during the latter months of the year 1892, and in November and December thereof, while the plaintiff was in the peaceable and lawful possession of said farm, the defendants F. W. Wagener & Co., through their agent, one W. D. Starling, leased the premises already in the possession of this plaintiff to the defendant Paul Wingard, and authorized the latter to occupy the same; and at the times aforesaid, and on divers occasions thereafter, in the spring of 1893, countenanced, instigated, and encouraged said Paul Wingard in going upon the said farm and premises, in violation of this plaintiff's rights, with force and arms, there trampling down his grass, sowing and gathering crops thereon, and otherwise injuring this plaintiff, by openly, insultingly, and in defiance of his warnings and protestations, persisting in trespassing on his property aforesaid, to his damage $10,000." To this complaint the defendants answered, denying each and every allegation thereof. At the first trial the jury found a verdict in the following form: "We find for the plaintiff fifteen hundred dollars, against Paul Wingard and P. W. Wagener and G. A. Wagener, known as the firm of F. W. Wagener & Co." Upon the motion of the defendants this verdict was set aside, and a new trial granted. On the second trial the jury rendered a verdict in the following form: "We find for the plaintiff one thousand dollars, against P. W. Wagener and G. A. Wagener, known as the firm of F.W.Wagener & Co. We find in favor of the defendant Paul Wingard." Upon this verdict judgment was entered in favor of Paul Wingard, against the plaintiff. On the third trial the jury found a verdict in the following form: "We find for the plaintiff eight hundred dollars." This verdict was likewise set aside, and a new trial granted. In the meantime, the defendants, by leave of the court first had and obtained, filed a supplemental answer, in...