Builderama, Inc. v. Morton

415 S.E.2d 796, 307 S.C. 440, 1992 S.C. LEXIS 65

Opinion

Harwell, Chief Justice:

The issue is whether the trial judge erred in denying appellant Otto Morton d/b/a Morton Home Builders a jury trial. We reverse and remand for trial.

I. FACTS

Respondent Builderama, Inc. instituted a collection action against appellant for the balance due on a commercial credit account. Appellant denied the allegations of the complaint, asserted a counterclaim, and demanded a jury trial. The trial judge denied appellant’s demand for a jury trial and referred the action to the master-in-equity.

II. DISCUSSION

Appellant asserts that the trial judge erred in denying him a jury trial. We agree.

Issues of fact in an action for the recovery of money must be tried by a jury, unless a jury trial be waived. Rule 38(a), SCRCP. The compulsory order of reference to the master-in equity deprived appellant of a mode of trial to which he is entitled as a matter of right, and thus was improper.

We hold that the trial judge erred in denying appellant a jury trial. The order of the trial judge denying appellant’s demand for a jury trial is reversed, and the case remanded for trial.

Reversed and remanded.

Chandler, Finney, Toal and Moore, JJ., concur.