Winn v. Harby
| Decision Date | 27 January 1931 |
| Docket Number | 13057. |
| Citation | 156 S.E. 767,159 S.C. 257 |
| Parties | WINN v. HARBY et al. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Sumter County; Wm. H Grimball, Judge.
Action by William M. Winn, as substituted trustee of the estate of D. James Winn, deceased, against H. J. Harby and others. From an order overruling a demurrer, defendants appeal, and, from an order refusing to require testimony taken before a referee to be incorporated in transcript of record, respondent appeals.
Orders affirmed.
The demurrer as to third cause of action follows:
I. The complaint herein fails to state facts sufficient to constitute a cause of action against these defendants, in that it is not shown that these defendants owed any duties to the plaintiff, and it is not shown that these defendants breached any duties which they owed to the plaintiff.
II. The complaint herein fails to state facts sufficient to constitute a cause of action against these defendants, in that the same shows that D. James Winn appointed the Sumter Trust Company as executor of his last will and testament and, if any one has breached any duty owing the plaintiff, it was the Sumter Trust Company as executor and not these defendants.
III. The complaint herein fails to state facts sufficient to constitute a cause of action against these defendants, in that these defendants in all of their actions and doings were agents of the Sumter Trust Company, and bore no fiduciary relationship to the plaintiff.
IV. The complaint herein fails to state facts sufficient to constitute a cause of action against these defendants, in that the statute law of the state of South Carolina fixes the liability of the Sumter Trust Company with regard to all of the matters set forth in the complaint and defines the security to the plaintiff in such cases, and the same is exclusive.
V. The complaint herein fails to state facts sufficient to constitute a cause of action against these defendants, in that, under the law, the plaintiff is not permitted to maintain a suit against the directors of the bank on account of the matters herein set forth, but, if such an action is at all maintainable, it must be brought by the receivers of the Sumter Trust Company for the benefit of all the depositors of the said institution.
R. D Epps and D. D. Moise, both of Sumter, for appellants.
S. K. Nash, of Sumter, and Melton & Belser, of Columbia, for respondent.
The three causes of action, set up in the complaint in this case, charged losses and damages to the estate of D. James Winn, deceased, occasioned by the alleged negligence, mismanagement, and conversion of the funds of the estate on the part of the defendants, as officers and directors of Sumter Trust Company, a banking and trust corporation, qualified executor and trustee of the estate. The suit, on the equity side of the court, demanded an accounting on the part of the defendants, and judgment against them for the sum of $25,000. The attorneys for the plaintiff, the substituted trustee, moved in the lower Court that the case be tried by the court, but, on objection to that procedure on the part of the defendants, Circuit Judge Ramage, who heard the motion, referred the case to a referee for the purpose of taking the evidence only, and reporting the same to the court. Pursuant to that order, the referee took the evidence in behalf of the plaintiff, and the reference was adjourned, presumably for the purpose of taking later the evidence in behalf of the defendants.
After the holding of the last reference, the defendants served upon plaintiff's counsel a demurrer to the complaint, and gave notice that they would move to dismiss the complaint on the grounds of the demurrer before Judge Grimball on February 14, 1930. Due to the press of other business before the court, the demurrer was not heard at the time noticed. Plaintiff's counsel in the meantime gave notice that they would move before Judge Grimball to dismiss the demurrer on the ground that it was frivolous.
The motion of the plaintiff and the demurrer of the defendants were heard together by Judge Grimball on April 21, 1930. He refused the motion of the plaintiff, but overruled the demurrer of the defendant. From that order, the defendants have appealed to this court.
At the outset, the plaintiff seeks to sustain Judge Grimball's order on the ground that, the case having been referred to a referee to take the evidence, it was not proper, under our practice and procedure, for the court to hear the demurrer before the filing of the referee's report, and we dispose of this question first.
Under the authority of the case of Cartee v. Spence, 24 S.C. 550, it seems that the court cannot hear and determine a question raised by demurrer after all the issues, both of...
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Winn v. Harby
...Grimball. From his order an appeal was taken to this court, and the opinion of this court in disposing of the appeal is found in 159 S.C. 257, 156 S.E. 767, 769. gist of the demurrer is found in the pleas that the complaint does not state a cause of action against the defendants, because it......
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