Blakely & Copeland v. Frazier

11 S.C. 122, 1878 S.C. LEXIS 47

Opinion

The opinion of the court was delivered by

Willard, C. J.

This action is brought by the plaintiffs as factors of Marshall Frazier, deceased, against his executors for money alleged to have been paid by plaintiffs for the account and benefit of said Frazier. The transactions out of which the present demand arises was a consignment of cotton for sale by plaintiffs, as factors of and on account of the defendants’ testator, to Marshall, Beach & Co., of Charleston, who consigned to Beach, Boot & Co., of Liverpool, by whom the cotton was sold and account of sales rendered. In the account-sales after crediting the proceeds of the sales of the cotton, and debiting commissions, charges, advances, and interest, a balance appeared to the credit of Beach, Boot & Co. This balance appears to have been paid by Marshall, Beach & Co., and by them collected from the plaintiffs who now seek to recover the same, less an admitted offset, from the executors of Frazier. A verdict was rendered for plaintiffs, and the present appeal is based on exceptions to the rulings and charge of the Circuit judge. So far as these exceptions are brought to notice by the points submitted by, the appellants, they will be considered, and in the order stated by the appellants.

The first point is that the court in Richland county had no jurisdiction to try this action, because neither of the defendants resided in that county.

It appears that prior to the term at which the cause was tried, and at May Term, 1875, an application was made to the Circuit Court to transfer the cause for trial to Edgefield county, where the defendants both resided, which was refused, and that the defendants at that time excepted to such ruling. It does not appear whether such -application was made on notice to the parties, or upon the call of the docket. Properly, it should be made before the cause is reached on the docket, so that the parties may have due notice of the place of trial in order to enable them to make their preparations for the trial. As no irregularity is alleged as the ground of the refusal of the Circuit Court to change the place of trial, we must assume that the application was made in due form, at all events that the plaintiffs assented to the time and manner in which it was made. As objection to proceeding with the trial in Richland county was made on the same ground at the trial, and an exception taken to its denial, whatever may be the force of the last-named exception, in itself considered, it certainly apprised the plaintiffs that the defendants intended to insist on the claim which they had made' at a prior time, and therefore they cannot be regarded as having abandoned any right that they might have, as it regarded an error in the previous ruling. The question then arises, was the refusal of the Circuit Court to order the case to be tried in Edgefield county erroneous, and can advantage be .taken of such error on this appeal. It is clearly not a question of jurisdiction, in the proper sense of that term, but of the denial of a substantial right material to the defence. The defendants being residents of the county of Edgefield, that was the proper county for the trial of the cause. 15 8tat. 913. The court had the right, however, to change the place of trial “in the cases provided by statute.” Unless this power is duly exercised the right of a defendant under the statute is absolute.

The cases in which the court may change the place of trial are stated in Section 149 of the code, as follows: “1. When the county designated for that purpose in the complaint is not the proper county. 2. 'When there is reason to believe that an impartial trial cannot be had therein. 3. When the convenience of witnesses and the ends of justice would be promoted by the change.”

In order to warrant a change on the grounds stated in the second and third subdivisions, it must be shown by the allegations and proofs of the parties that such grounds for the action demanded exist.

The order of the court interfering with the right secured .by the statute, can only be supported when resting on such allegations and proofs.

The reasons that may have existed in the breast of the judge are no sufficient ground of his action in such cases, and seldom in any case. It does not appear that any allegations or proofs were submitted to the Circuit Court that could have justified the exercise • of the power of the court to change the place of trial from the county in which, by law, it was entitled to be tried in the absence of special grounds for its removal.

On the other hand it was the clear duty of the court under the first subdivision to order the place of trial designated in the complaint to be changed, when it appeared that that was not the proper place of trial. The directions of the statute, that the court may change the place of trial when not laid in the proper _ county, is not merely a grant of authority for that purpose, but imposes a duty, in view of the fact that the right to such change was secured by the statute.

It must be assumed that the court had the record of the case before it, and determined that as matter of law the residence of-the defendants in Edgefield was immaterial to the question raised by the motion. As imperfect as is the statement of the nature of the decision we feel warranted in assuming thus much. The refusal to change the place of trial was clearly wrong, and it remains to be considered whether that wrong can be alleged as an error at law under the present appeal.

The jurisdiction of this court extends to all appeals from intermediate orders and final judgments in actions where such order or judgment involves the merits. 15 Stat. 868. An order involving merely the exercise of discretion on the part of the court making it is not appealable, as error of law cannot be alleged as against such an order. 1 Wait Prac. 465. When, however, the order affects a substantial right, necessarily affecting the judgment, it must be regarded as involving the merits. The term “ merits ” is not very clearly defined. It certainly embraces more than the questions of law and fact, constituting the cause of action or defence. As it regards the principles of construction, the necessary means of attaining an end stand upon the same ground of privilege as the end itself. If, then, a party is entitled to an appeal as a means of securing a proper judgment, he is presumably entitled to such appeal, in order to secure that without which the judgment could not be rightfully had. The word “ merits ” naturally bears the sense of including all that the party may claim of right in reference to his case. Nor is any authority brought to notice that limits the sense to any particular class of rights among those that have a tendency to control the results of cases. The expression “affecting the judgment,” employed by the statute (15 Stat. 868) must be regarded as equivalent, in the sense of that statute, to the other expression, “involving the merits,” as defining the cases to which that jurisdiction shall extend. They must be regarded as different definitions of the same case. In Section 11 of the code, as it originally stood, the expression was, “ involving the merits and necessarily affecting the judgment.” As that section now stands, the review of judgments, and intermediate orders upon direct appeal from such judgments or orders, extends to all cases “ involving the merits,” the other words being omitted, while as it regards intermediate orders, brought up for review by an appeal from the final judgment, the expression employed to limit the jurisdiction is “necessarily affecting the judgment,” omitting the words “involving the merits.” It is evident that the words “ involving the merits,” is used in its large significance in the original text of the code, as appears from the character of the terms limiting it to cases where the judgment was necessarily affected. On the •other hand, in the amendment of 1873, this limitation is dispensed with, presumably as unnecessary, and* the terms there employed are treated as equivalents. Whatever can be regarded .as affecting the necessary means of obtaining a judgment, must be regarded as affecting the judgment itself.

It may be concluded from the foregoing that whenever a substantial right of the party to an action material to obtaining a judgment in such action is denied, a right of appeal lies to this court. Prior to the recent amendment of the code relating to the place of trial, the defendant could not, as matter of right, claim that a trial should be had in the county of his residence. In those cases where the venue was not fixed by the nature of the cause of action itself, it was .the right of the plaintiff to select the place of trial, subject only to the limitation that such place of trial must, when any of the parties reside within the state, be in some county where one or more of such parties, either plaintiff or defendant, resides. If the defendant desired to effect a change, it could only be obtained by the order of the court on the grounds specified by law. It is evident that under the law as it now stands, the defendant may claim of right that the trial should be had in the county where he resides, in cases of the class to which the present belongs. If, then, it is material to his defence that the jury, convened to try his case, should be drawn, summoned .and empaneled in the manner prescribed by law, so that the denial of right, in this respect, entitles him to an appeal, it is manifest that to change it from a vicinage other than that designated by law, is an error in a matter involving a substantial right material.to his defence, and thereby necessarily affecting the judgment. The conclusion reached renders a new trial necessary.

The second point involves the question whether irregularities in complying with an order of the court allowing amendment to the pleadings, can be taken advantage of upon the trial of the cause. It is the duty of the parties, if they wish to take advantage of an irregularity in the mode of interposing a pleading, to move the court in due time before the cause is called, for such •order as the nature of the case may demand. It is too late to take such an objection after the parties have framed an issue and-gone to.trial upon it. If the parties had a right to object to the validity of a pleading on the ground of irregularity merely, it would be equivalent to saying that a pleading irregularly interposed may be'disregarded as a nullity. The contrary of this is-true, namely, that such a pleading is good until set aside on the ground of irregularity. The defendant, in making the objection before us, does not stand on the ground of vindicating a substantial right denied to him, but of taking advantage of mere irregularities in form by the opposite party; clearly no such appeal-can be allowed by this court.

The third point relates to the statute of limitations. The court properly refused to charge that the cause of action in suit arose upon the sale of the cotton in Europe. The liability of defendants’ testator to the plaintiffs could not arise until the actual payment by the plaintiffs of the amount of the reclamation made by the parties who sold the cotton. If, prior to that payment, the plaintiffs had sued M. Frazier, it is clear that they would have failed in their action. The question of the effect of the statute of limitations, as it regards the defendant, Frazier,, depends upon the fact that at the commencement of the action-the defendant, Frazier, was the only executor having authority under the will to act. The will does not admit of any joint executor during the existence of due qualification on the part, of Frazier. Consequently the action was well brought, as it regards Frazier, and the statute cannot be pleaded by him as running after service upon him. As it regards Sanders, we do not know by what title he is treated as the executor, inasmuch as by the will he cannot claim to be such; and as we are not informed upon what ground he is claimed or admitted to be such, we cannot, at the present stage of the case, determine his relation to the statute of limitations.

The fourth point involves the question of the necessity of proof of the right of the Liverpool house to demand a reclamation. It was of course necessary to make proof of the state of the accounts, in order to show that the money advanced by the plaintiffs was paid for the advantage of the defendants. The plaintiffs had the right to put the parties making claim against them to proof of the accounts in an action, and by waiving such proof by voluntary payment they could not throw that burden on the defendants, but must be regarded as having assumed that duty. The submission and award cannot properly be regarded' as an admission by the testator of the defendants of the propriety of the reclamation. The question submitted was as to on whom the duty of settling the accounts was incumbent in the first instance — whether upon the owner of the cotton or his factor y and the decision imposed that duty on the plaintiffs, as such factors. This was the whole effect of the arbitration. There was therefore error in this respect in the charge and refusal to charge*

The request to charge, to which the fifth point relates, was properly refused, as it involved a charge as to the sufficiency of evidence apart from its legal character and tendency, and therefore as to matters of fact within the exclusive competency of the-jul7-

The charge to which the sixth point relates was clearly erroneous. It involves the proposition that the award of the arbitrators fixed the amount of the reclamation as due from the testator, and therefore the account could not be examined as it regarded the charges for premium on gold and for exchange* As the award could not have such effect, the charge is erroneous* The court having charged the proposition embraced in the request, independently of the erroneous charge that followed, no-further question of error is presented.

The observations made as to the sixth point apply to and are decisive of the seventh point. The proposition embraced in the request to charge was submitted to the jury, but its effect destroyed by an erroneous conclusion as to the effect of the award.

It is-not necessary to determine the true form of stating the accounts between the plaintiffs and defendants, or their testator, as that is a matter of detail not necessarily affecting the results of an accounting. The court, having reposed the settlement of the accounts upon the effect of the award, rendered questions as to the form of stating the accounts immaterial, as far as it concerned the matters presumably embraced in the verdict. We do not deem it necessary to lay down the rule that should govern the statement of the accounts as it regards matters of form on any future trial of this cause.

The proposition embraced 'in the ninth point was properly refused. The effect of rendering imperfect or conflicting accounts by the plaintiffs was a matter to be determined by the jury, and not by the court.

The tenth point is not well taken. E. W. Marshall was not :a party to the suit, nor, as far as appears, directly or even indirectly interested in its results. The fact that the witness was a member of the house in Charleston to. whom the cotton was consigned by the plaintiff, and through whom the reclamation was made against the plaintiffs, does not put him in the position of having once owned or been interested in the demand made by the plaintiffs. The cause of action upon which they sue arose only in their hands by the payment of the reclamation. They did not assume or acquire any right that had subsisted in the hands of the Charleston house as against M. Frazier; for the •effect of the arbitration, as assented to by all the parties, and which is necessarily regarded as the law of the case, fixed the liability, primarily, on the defendants, of stating and settling the account; and the defendants cannot assume a state of relations at variance with that ascertained by the award. Besides, the •effect of payment by the plaintiffs was to destroy the right of reclamation, not to preserve it in their own hands, inasmuch as they acted as the agents of the testator. The testimony in question was clearly competent.

The objection to the testimony of the plaintiff, Blakely, made by the eleventh point, was well taken. He was a party to the action, and his testimony related to conversations with a deceased person, and was given in a case where the executor of such dis•eased person had an opposite interest in such action. The admission was therefore clearly improper.

The twelfth point seeks to take advantage of an immaterial variance between the allegations and proofs, which cannot be done.

It does not appear distinctly what the facts were upon which objection was made to the commissions put in evidence. Nothing appears on the subject but general admissions affecting them. As upon another trial admissions made on the present record will not be conclusive as to the right to introduce the commissions, it does not appear that the questions in this respect, raised by the present record, can arise on such future trial, and we deem it unnecessary to consider them iu the absence of the facts. The present action being against the executors of M. Frazier, we cannot see how the unpaid costs of an action against M. Frazier, brought and discontinued during his lifetime, can be interposed as a defence. Although the cause of action may be the same, there is not an identity of parties. The defendants, as defendants, have no right to demand such costs, but merely as the personal representatives of the deceased former defendant. Under the view taken of the case, we do not regard it as at all material to consider the other matters discussed, as they arise out of the view taken of the case by the Circuit Court, which, as we have seen, was erroneous, and as not likely to be of importance as the further consideration of the case.

There should be a new trial.

New trial granted.

McIver and Haskell, A. J.’s, concurred.