Bank v. Farmington Corporation , 99 S.C. 475 ( 1914 )

These actions were brought to foreclose mortgages of real and personal property. On motion of plaintiff, against the objection of defendant, his Honor, Frank B. Gary, granted an order of reference in each case, directing the referee to take the testimony and report his findings and conclusions, and providing that the case should be heard upon such report and any exceptions which might be taken thereto by the parties. From these orders, the defendants appealed. While the appeals were pending in this Circuit, the referee proceeded with the references against the objection of the defendants, who contended that the appeals stayed further proceedings in the Court below. The referee made and filed his reports, and the cases were brought on for hearing before his Honor, Judge Prince. The defendants objected to the hearing on the ground above stated, and Judge Prince sustained their objection, holding that the orders of reference were appealable, and that the pendency of the appeals ousted the Circuit Court of jurisdiction to proceed with the trial of the merits. From this ruling, the plaintiff appealed.

Subdivision 6 of section 23 of the Code of Civil Procedure has, among others, this special provision for the disposition of causes pending in the Courts of Common Pleas in the several counties composing the Sixth District: "And in each of said counties, upon the demand of either party, equity cases shall be tried in open Court, upon testimony then and there offered, the same to be taken down by the Court stenographer as a part of his official duty."

When the orders of reference were asked for, counsel for the defendants objected to them, stating that, while they might later consent to orders of reference, as then advised, they would demand trials in open Court, under the provisions of the statute above quoted.

The contention of counsel for plaintiff that the statute is merely directory, and still leaves it discretionary with the Circuit Court to refer such causes, notwithstanding the demand of a party for a trial in open Court, can not be sustained. It is well settled that in the absence of such a statute, the Court has that discretion in equity causes. But, if the provision quoted does not take away that discretion, when demand for a trial in open Court is made by a party, it is without any meaning, force or effect. To so hold would violate elementary and fundamental principles of construing statutes. The contention that this construction of the statute would prevent the parties from taking the testimony of witnesses de bene esse, or by commission, in the cases provided for by the statutes is equally unsound. There was no intention to interfere with that method of taking testimony where the circumstances require that it shall be to taken. But the intention is clear that in so far as it can be done, under the usual methods of procedure, the trial shall be held in open Court, if demand therefor is made by a party. The orders of reference were, therefore, erroneously granted.

As these orders denied the defendants the mode of trial to which they were entitled, under the statute, they were appealable. Dewalt v. Kinard, 19 S.C. 286; Ferguson v.Harrison, 34 S.C. 169, 13 S.E. 232; Wilson N. York,43 S.C. 302, 21 S.E. 82; McLaurin v. Hodges, 43 S.C. 187,20 S.E. 991; Alston v. Limehouse, 61 S.C. 1, 39 S.E. 192. The orders being appealable, the pendency of the appeals ousted the Circuit Court of jurisdiction to try the cases on the merits. Bank v. Stelling, 32 S.C. 102, 10 S.E. 766;Alston v. Limehouse, 60 S.C. 559, 39 S.E. 188; McDaniel v. R. Co., 76 S.C. 192, 56 S.E. 956.

The action of the majority of the Court in holding subdivision 6 of section 23 of the Code of Civil Procedure unconstitutional, and in sustaining the orders of reference on that ground, seems to me to be a departure from a well settled principle which has been frequently announced by this Court, and one which is sustained by a practically unanimous opinion of other Courts and the text writers, to wit: that out of respect to a co-ordinate branch of the government, the Courts will not consider the constitutionality of a statute, unless the question of its constitutionality is properly before the Court, and necessary to the decision of the case.

In decisions too numerous to mention this Court has held that it will not consider any question — to say nothing of one so delicate, and important as the constitutionality of an act of the legislature, unless it was raised in the trial Court, and properly brought to this Court by an exception.

In this case the record shows that the constitutionality of the statute in question was not raised in the Circuit Court, nor was it raised by any exception or sustaining ground on the appeal to this Court. The question was not even mooted at the hearing in this Court. Therefore, I do not think it properly before the Court for decision. That it is a question of public interest and importance is not a sufficient reason for the Court to depart from the settled rule and decide it without having heard argument upon it. The rule has been frequently applied by this Court, and the consideration of such questions declined even in criminal cases, where the liberty of the citizen was involved. In State v.Hertzog, 92 S.C. 14, 75 S.E. 374, the Court en banc applied the principle, and declined to consider the constitutionality of a statute on a ground not made in the Circuit Court.

In his opinion in Nexsen v. Ward, 96 S.C. 332,80 S.E. 599, Chief Justice Gary said: "When a constitutional question was not raised in the Circuit Court, it can not properly be made the basis of an exception on an appeal to the Supreme Court," and he cited numerous decisions of this Court which sustain that proposition. In Burnett v. Ry.,62 S.C. 281, 40 S.E. 679; Hill v. Ry., 67 S.C. 548,46 S.E. 486, and Brickman v. Ry., 74 S.C. 306, 54 S.E. 553, the same learned Justice, speaking for the Court, declined to consider questions as to the constitutionality of statutes on the ground that they had not been raised in the Circuit Court. In Lowrimore v. Mfg. Co., 60 S.C. 153,38 S.E. 430, Chief Justice McIver, after showing that it did not appear from the "case" that the constitutionality of the statute in question had been raised in the Circuit Court, expressed the unanimous opinion of the Court in declining to consider the question in the following language: "It is always a delicate and disagreeable duty to declare an act of the General Assembly unconstitutional, and, therefore, null and void; and while a Court should not shrink from the performance of such a duty when the question properly arises, and its decision is necessary to the decision of the case in which such a question is properly presented, yet a proper respect for a co-ordinate branch of the government should always forbid a Court from considering or deciding such a question in a case where it is not properly presented by the facts of such case." The Lowrimore case was cited with approval and followed in Walker v. Ry., 76 S.C. 308,56 S.E. 952. Numerous other decisions of this Court to the same effect might be cited.

For the foregoing reasons, I think the orders of Judge Gary should be reversed, and those of Judge Prince affirmed.

MR. JUSTICE GAGE did not sit in this case.