Tedder v. Tedder

• Decision Date: 16 April 1918
• Docket Number: 9960.
• Citation: 96 S.E. 157,109 S.C. 451
• Parties: TEDDER ET AL. v. TEDDER ET AL.
• Court: South Carolina Supreme Court

96 S.E. 157

109 S.C. 451

TEDDER ET AL. v. TEDDER ET AL.

No. 9960.

Supreme Court of South Carolina

April 16, 1918

Appeal from Common Pleas Circuit Court of Darlington County; R. C Watts, Associate Justice, and R. W. Memminger and Thomas H Spain, Circuit Judges.

Action by R. Furman Tedder and others against William Tedder and others. From orders of the circuit court defendants appeal; orders of supersedeas being made by a justice of the Supreme Court. On plaintiffs' motion to vacate the orders of supersedeas and to dismiss defendants' appeals. Motion to vacate the orders refused and appeals dismissed.

See also, 94 S.E. 19.

E. O. Woods, Dargan & Dargan, and Geo. H. Edwards, all of Darlington, for appellants.

Geo. W. Brown, of Darlington, and Frank A. Miller, of Hartsville, for respondents.

HYDRICK J.

This is a motion by plaintiffs to vacate several orders of supersedeas granted by Mr. Justice Watts, and to dismiss the defendants' appeals from the orders of the circuit court which were superseded. In their efforts to speed the cause, plaintiffs proceeded somewhat irregularly, with the result, not unusual in such cases, that they have brought about confusion and delay.

The opinion and judgment of this court, which determined certain issues in the cause and remanded it to the circuit court for further proceedings not inconsistent with the views announced by this court, were filed in the circuit court on November 13, 1917. On the next day plaintiffs obtained from Judge Memminger, who was then presiding in the circuit court at Darlington, an ex parte order, which recites that this court held that the several deeds of William Tedder, Sr., to his illegitimate sons named, are void as to three-fourths of the value of the land attempted to be conveyed to each, and therefore the legitimate heirs of said grantor are tenants in common of the lands with the several grantees in the proportions of three-fourths to one-fourth, and that it therefore appears that the heirs of said grantor are entitled to an accounting from the several grantees for rents and profits received since the date of the conveyances to them respectively, and refers it to the master to take and report the testimony as to the practicability of a partition in kind, and as to rents and profits received by the several defendants since the date of the several conveyances to them respectively, or, in case of a failure of proof as to such rents and profits, then as to rental value,

From this order defendants appealed, and, as plaintiffs were attempting to hold references under it, defendants obtained from Mr. Justice WATTS an order of supersedeas. Defendants proceeded to perfect their appeal, and served their proposed case, to which plaintiffs proposed amendments, which defendants declined to allow, and served notice of a motion to settle the case before Judge Memminger, on January 22, 1918, at Charleston, his honor having previously left the fourth circuit. In response to this notice, plaintiffs served notice on defendants that they would move before Judge Memminger to vacate his order of November 14th.

On hearing the motion, Judge Memminger passed an order, dated January 22d, vacating his order of November 14th, and refusing to settle the case for appeal from that order, holding that, as the order was vacated, the further prosecution of the appeal was useless, as it could result in nothing more than a decision that the order vacated was erroneously granted. From this order defendants appealed, on the grounds that his honor, having left the circuit, had no jurisdiction to vacate his order of November 14th, and erred in refusing to settle the case for appeal therefrom.

In the meantime, and pending the running of the notice of the motions before Judge Memminger, plaintiffs served notice on defendants that, if Judge Memminger should vacate his order of November 14th, they would move before Judge Spain, the resident judge of the circuit, on January 23d, for an order of reference, a copy of the proposed order being served with the notice. The defendants appeared before Judge Spain and objected to the proposed order, on the ground that it was too limited in the scope of the issues upon which testimony could be taken by the master under it, stating that they wished the order made broad enough, in specific terms, to allow them to introduce evidence of betterments. The judge made some change in the wording of the proposed order, under which he thought defendants would be allowed to offer such testimony, and signed it. From that order defendants appealed.

On January 25th, on motion of plaintiffs, Judge Spain passed another order appointing a receiver, who was ordered to take possession of the lands in dispute, rent the same, and collect the rents, and defendants were ordered to surrender possession thereof to him, and enjoined from interfering with him or the property during the continuance of the receivership. The order appears to have been made upon the sole ground that defendants, who are in possession, are insolvent. From that order defendants appealed.

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