Hand v. Kelly

86 S.E. 382, 102 S.C. 151, 1915 S.C. LEXIS 192

• Court: Supreme Court of South Carolina
• Decided: September 28, 1915
• Docket: 9198
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Gage.

Ihave not been able to concur in the conclusions expressed by the Chief Justice and by Mr. Justice Fraser.

I think the complaint ought to be dismissed.

It is a matter of indifference that the plaintiff sued in the probate Court rather than in the Circuit Court. This action will not lie in either Court; the defendant could not get that which he demands in either of them.

1 The respondent’s initial objection, that the appeal is premature, is not tenable; the issue made involves the mode of trial, by the Court or by a jury; and that is always an essential issue, right at the threshold of the cause.

2 The appellant’s initial contention, that the complaint does not state a case for equitable relief, goes to the vitals of the case.

It is true the Code of Civil Procedure directs that pleadings must be liberally construed. (Section 209.)

Granting that the plaintiff intended to draft a creditor’s bill, yet the question of his right to such a bill still remains.

But we think the complaint cannot be even sustained as one which attempted to state a creditor’s bill.

There is no allegation that the estate was debtor to another person than the plaintiff; there is no allegation that the suit was for the benefit of all creditors, and no plea for creditors to come in.

There is a plea that the personal estate is insufficient to pay the debts of the estate; and there is reference, but in the prayer only, about insufficiency of personal estate, about other creditors, and about debts of said estate.

3 A cause well pleaded is half won; and the insistence upon accurate pleading is not always form, but often substance; it is so in the instant case.

4 The real question made by the appellant is, that the suit is to recover a considerable sum of money, on an unliquidated demand, without the intervention of a jury, and that issue will be considered without reference to the form of pleading, and just as if a creditor’s bill had been properly drawn.

It is true that demands like the plaintiff’s have been established before Courts and without the verdict of a jury; but generally in actions begun by executors, wherein creditors have been called in, and wherein creditors came and submitted their demands to a Court without a jury.

And in some cases the creditors have sued directly on such demands before Courts without a jury, as in Scruggs v. Foote, 19 S. C. 274, and Dyson v. Jones, 65 S. C. 308, 43 S. E. 677.

In both those cases the mode of trial, by the Court, without a jury, had not been resisted in the first instance; and the actions were in the Circuit Court and to vacate the judgments which had been aforetime rendered by the probate Court.

In Hughes v. Kirkpatrick, 37 S. C. 168, 15 S. E. 912, the Court in effect held that the creditors had waived the right to a jury trial by proving the demand before a Court without a jury.

In Cleveland v. Mills, 9 S. C. 436, the issues were tried before a jury; and so in Wilson v. York, 43 S. C. 302, 21 S. E. 82; though the last case was not wholly of the character as that at bar.

But further reference to cases will blunt the issue made by the appeal. Those cases which have already been decided speak for themselves, and their voice cannot be changed by a review of them.

The Courts of this State, and legislatures, too, and surely most Courts and legislatures, have long since concluded on common principles of honesty that if a person dies and leaves debts unpaid, debts of any sort, and leaves also land, but no personalty to pay his debts, then the land must go for the debts, if pursued in time.

How the land shall be reached, therefore, is sometimes a question of mere form and procedure; but in the instant case the vital question is the integrity of the debt, and, therefore, the tribunal to determine that integrity.

It will be admitted on all hands that if the plaintiff had omitted the 10th paragraph of the complaint, that paragraph which alleges insufficiency of personal assets, then the case would have been one for a jury, and, therefore, one denied to the probate Court, and to any Court without the power to empanel a jury.

It will not be denied that if the plaintiff had a lien on the land to secure her debt, then the case would have been one for a Court with a jury, probate or Common Pleas.

Some of the Judges have referred to the plaintiff’s right against the land as an “equity;” it may be; it is a right, but it is only one to be enforced against the heir when the debt of the ancestor shall have been proven to be true.

5 The plaintiff must first establish before, a Court and jury her demand, before she may proceed to fix it upon the defendant’s descended real estate; and that is the fundamental reason she may not maintain an action like this upon an unproven demand. 3 Pomeroy Equity, sec. 1415, et seq.; 8 R. C. L., page 20; Brock v. Kirkpatrick, 60 S. C. 322, 38 S. E. 779; 8 A. & E. Decisions in Equity, page 309.

6 If the cause should proceed to a trial in the probate Court, and if the plaintiff’s demand should be there allowed, and if the cause should be appealed to the Circuit Court, then the defendant’s right to a jury would be gone. Rollin v. Whipper, 17 S. C. 32; Ex parte Appeller, 35 S. C. 420, 14 S. E. 931; Hughes v. Kirkpatrick, 37 S. C. 168, 15 S. E. 912.

7 It is true,' if the plaintiff’s demand should first be lawfully established as true; and if she should then file her bill to enforce it against descended land, and because the personal assets were insufficient therefor; then the-cause would be one in equity; the Court would do complete justice, and try the truth of all claims thereafter presented against the estate.

In my judgment the complaint ought to be dismissed.

Messrs. Justices Hydrick and Watts concur in the opinion announced bjr Mr. Justice Gage.

Footnote.—As to liability of heirs for obligations qf ancestor, see note in 21 L. R. A. 89.