Uzzell v. Horn

• Decision Date: 18 April 1905
• Citation: 51 S.E. 253,71 S.C. 426
• Parties: UZZELL et al. v. HORN et al.
• Court: South Carolina Supreme Court

51 S.E. 253

71 S.C. 426

UZZELL et al. v. HORN et al.

Supreme Court of South Carolina

April 18, 1905

Appeal from Common Pleas Circuit Court of Florence County; Watts Judge.

Action by Eliza Uzzell and others against John R. and Maggie Horn. Judgment for plaintiffs, and defendants appeal. Affirmed.

Geo. W Brown, J. W. Ragsdale, and George Galletly, for appellants. J. P. McNeill, Willcox & Willcox, and S.W. G. Shipp, for respondents.

POPE C.J.

This is an action to recover real estate. The plaintiffs in their complaint allege that Robert Peel, Sr., was seised and possessed of a tract of land containing 95 acres, situate in Florence county, but that by the deed of conveyance to him it was subject to the following trusts: First, for the benefit of Robert Peel, Jr., for and during his natural life; after his death, for his wife, Martha W. Peel, for and during her natural life; and at the death of the two the same was to vest in such child or children as were born to Robert Peel Jr.; in case of any of such children dying leaving issue, the share of such child or children so dying shall be vested in his children; but in the event said Robert Peel, Jr., dies childless, never having had a child born to him, that then said tract of land should vest in said Robert Peel Jr.'s, brothers and sisters; and in case any one die leaving children, such children of such deceased brother or sister should inherit his or her parent's share. That the deed was dated May 15, 1879, and Robert Peel, Jr., occupied it from that date (1879) to about 1896, and his widow, Martha W. Peel, occupied it until 1900, and after her death a daughter of hers by a first husband, Mrs. Martha Horn, together with her son, John Horn, occupied the same; and that said Martha Horn and John Horn refuse to yield possession to the plaintiffs, who are the children and grandchildren of the said Peel, Sr. Thereupon they brought this action to recover said tract of land. The cause came on for trial before Judge Watts and a jury. The judge directed the verdict for the plaintiffs. Thereupon the two defendants appealed on the following grounds:

"(1) The court below erred in ordering the cause to trial, an appeal having been taken to the Supreme Court from the order of Judge Gary, and no order having been made by the Supreme Court, its clerk, or the circuit court dismissing the same or declaring the same abandoned, but the court should have continued the same.

(2) The court below erred in admitting in evidence the record book of Florence county, purporting to contain a copy of an alleged deed from Marinda Williams to Robert Peel, Sr., dated 15th May, 1879, and recorded in said office on 9th January, 1895, in Book J, page 326, but the said court should have held the same inadmissible, because (a) the loss of the original had not been proven; (b) there was no proof of a search or effort to find the original in the possession of the party entitled to the said possession--the trustee and his successors.

(3) The court below erred in not directing a verdict for the defendants, in that plaintiffs failed to introduce any evidence tending to show that they had obtained a conveyance of the premises in question from the alleged trustee, Robert Peel,

Sr., or his successor.

(4) The court below erred in not granting defendants' motion of nonsuit on the grounds that the plaintiffs introduced no testimony or evidence tending to show: (a) The plaintiffs had a conveyance from the alleged trustee, Robert Peel, Sr., or his successor. (b) They introduced no testimony tending to show title in themselves or out of the state. (c) There is an entire failure of testimony as to title in plaintiffs. (d) They have entirely failed to introduce evidence tending to show or prove title in themselves in any of the ways provided by law. (They have introduced no testimony tending to show that the plaintiffs have or claim under a grant from the state, or by adverse possession or a common source.)

(5) The court below erred in not striking out on defendants' motion the testimony of Geo. W. Williams, a witness, as to who had been in the possession of the said premises after the execution of the said deed, when it appeared from the cross-examination that the same was entirely founded on hearsay, and in not instructing the jury to disregard the same.

(6) The court below erred in instructing the jury to find for the plaintiffs, and in not instructing them to find for the defendants. (a) The same was in violation of the Constitution as to charging the jury in respect to matters of fact. (b) There was no testimony tending to show title in the plaintiffs. (c) There was no testimony tending to show that the plaintiffs had a deed from the alleged trustee, Robert Peel, Sr., or his successor.

(8) The court below erred in not allowing the defendants to withdraw the portion of the answer of Maggie Horn as to betterments, and in holding the jury had nothing to do with that matter."

We will now pass upon these grounds of appeal.

1. It seems that the plaintiffs demurred to a portion of Mrs. Maggie Horn's answer wherein she set up betterments. Judge Ernest Gary, who heard such demurrer, overruled the same, and thereupon the plaintiffs gave notice of appeal from Judge Gary's said order, said order being dated June 10, 1903, but no steps have ever been taken since the notice of the order of Judge Gary to perfect said appeal. No return has ever been filed in the Supreme Court. No ""case" has been served or received by plaintiffs' attorney, nor has any "case" been filed in the office of the clerk of court. On September 15, 1903, the following notice, signed by the plaintiffs' attorneys, was addressed to the defendants' attorneys: " We take this means of notifying you that we have abandoned our appeal from the order of Judge Gary overruling our demurrer to the portion of the answer of Maggie Horn, which we interposed at the June term of our court, and we expect to make an effort to try the case on its merits at the October, 1903, term of our court." No order was ever made by the Supreme Court or its clerk or by the circuit court dismissing the same or declaring the same abandoned. At the October term of the court of common pleas for Florence county, the said cause was called to be heard before Judge R. C. Watts and a jury. The defendants interposed objection to proceeding with the said trial on the grounds that an appeal to the Supreme Court was pending from the said order and decision of Judge Gary, and that no order had been made dismissing or declaring the same abandoned. The presiding judge overruled the same, and ordered the trial to proceed.

This is a history of so much of these proceedings as affects the first ground of appeal. It is far safer in practice to obtain the order of the Supreme Court in dismissing an appeal, but in some cases the circuit judge can and does dismiss appeals where they have not been carried to the Supreme Court. We consider that Judge Watts, when he overruled the motion of continuance on account of the alleged pending appeal in the Supreme Court, virtually dismissed the appeal, for he ordered the trial to proceed, which we scarcely think he would have done if he had not deemed the obstacle of the appeal as removed. State v. Johnson, 52 S.C. 505, 30 S.E. 592, is an authority for the contention that the circuit court in this case, no return having been filed, and the appeal not having been perfected, had jurisdiction to adjudge the appeal abandoned. Therefore we overrule this exception.

2. We do not deem the circuit judge in error in allowing in evidence the record book of Florence county, purporting to contain a copy of an alleged deed from Marinda Williams to Robert Peel, Sr., dated May 15, 1879, recorded in said office January 9, 1895, in Book J, page 326. Greenleaf, in his admirable work on Evidence, uses the following language in section 558: "And, first, in regard to production of such documents. If the instrument is lost, the party is required to give some evidence that such paper once existed, though slight evidence is sufficient for this purpose; and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof. *** What degree of diligence in the search is necessary it is not easy to define, as each case depends much on its peculiar circumstances, and the question whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents is to be determined by the court, and not by the jury. But it seems that, in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him. It should be recollected that the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and that this is a preliminary inquiry directed to the discretion of the judge. *** If it belongs to the custody of certain persons, or is proved, or may be presumed, to have been in their possession, they must, in general, be called and sworn to account for it, if they are in the reach of the court; and so, if it might or ought to have been deposited in a public office or other particular place, that place must be searched. If the search was made by a third person, he must be called to testify respecting to, and if the paper belongs to his custody he must be served with a subpoena duces tecum to produce it." Also, in section 560: "When the instrument or writing is in the hands or power of the adverse party, there are, in general, except in the case above mentioned, no means at...