Central National Bank v. Duncan

57 S.E. 531, 77 S.C. 1, 1907 S.C. LEXIS 97

• Court: Supreme Court of South Carolina
• Decided: February 9, 1907
• Docket: 6430
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gary.

This is an appeal from an order of reference. When’ the plaintiff made a motion for an order of reference, the defendants resisted the same, on the ground that the action was, in reality, to> recover possession of real property, and that the. case should, therefore, be transferred to calendar 1 for a trial by jury. His Honor, the Circuit Judge, granted an order of reference to the master to report the testimony, whereupon the defendants appealed.

The order in effect denied the defendants a trial by jury, and the sole question is whether this was error.

Our construction of the complaint is, that it only sets forth an action to recover the possession of real property. It does not seek reformation of the lease, but on the contrary states that the defendants acquiesced in the insertion of the clause therein, alleged to have been omitted by an oversight. The allegations of the complaint show, that there is no obstacle in the way of the plaintiff’s recovery of the land, and that it has an adequate remedy at law.

It is the judgment of this Court that the judgment of the Curcuit Court be reversed.

Mr. Chief Justice Pope concurs in this opinion.