The opinion of the Court was delivered by
Mr. Justice Hydrick.
The appellant, Meier, as executor thereof, sought to prove a paper purporting to be the will of Mrs. Meta H. C. S. Rodenberg, deceased, in the probate Court for Dorchester. By decree, filed August 23, 1918, the Court rejected the alleged will. Meier gave due notice of appeal to the Circuit Court, and on September 6, 1918, filed therein a certified copy of the record from the probate Court, as required by section 64 of the Code of Civil Procedure. On January 3, 1919, respondents served notice on Meier of their intention to apply to the Court for an order, framing issues (o be submitted to a jury on the hearing of the appeal. Against Meier’s objection that the notice was not given within the time allowed by law, the Court granted the order prayed •"or by respondents, and that is the basis of the sole ground >f appeal to this Court.
1
Section 66 of the Code of Civil Procedure provides: “When such certified copy (that required by section 64) shall have been filed in the Circuit Court, such Court shall proceed to the trial and determination of the question, according to the rules of law; and if there shall be any question of fact or title to land to be decided, issues may be joined thereon under the direction of the Court, and a trial thereof had by jury.”
By the terms of that section, trial by jury on appeal of issues of fact is not demandable as of right, but may be allowed in the discretion of the Court; and, when allowed, the issue is to be joined under the direction of the Court; hence, the practice has prevailed, ever since the adoption of the Code, for the party (appellant or respondent) who may desire a trial by jury of any issue of fact on such appeals, to move the Court, on due notice to the opposite party, for an order framing such issues.
Ex parte Apeler,
35 S. C. 417, 14 S. E. 931, and cases cited by the. Court. The Code of Procedure does not prescribe the time within which such motion shall be made. But, as most of the issues of fact arising on such appeals are issues in causes of an equitable nature, by common consent of the bench and bar, rule 28 of the Circuit Court has been applied to the framing of issues on such appeals.
That rule provides that “In equity cases, where a trial by jury of issues of fact may be desired, the party desiring a jury trial shall, within ten days after issue joined, give notice in writing of his intention to move the Court” for an order framing such issues, and if the adverse party desires any other issues to be submitted, he shall, within four days after service of the notice upon him, serve notice that he will move the Court at the same time for the submission of such additional issues as he may desire, and the Court may settle the issues, if any are deemed necessary.
It appears from a glance at that part of the rule which is above quoted that it was originally intended to apply to equity causes pending in the original jurisdiction of the Circuit Court, in which the issue is joined, when the answer is served, and, therefore, the time is specified in the rule within which the notice of the several motions for issues must be served. And while that rule was not originally intended to apply to the framing of issues on appeals from the probate Court, nevertheless, in the absence of any statutory pro
vision, or other applicable rule, it has been applied in such cases ever since the adoption of the Code, and has served the purpose fairly well.
But, as far as we have been able to discover, this is the first case in which this Court has been called upon to decide the question: When is the “issue joined” within the meaning of the words of the rule, as applied to such appeal ? Clearly, they do not mean when the answer is served in the probate Court, for, at that time, it cannot be known whether there will be an appeal, nor by which side; hence they must be costrued to mean when the issue on appeal is joined.
Now, the issues on appeal are made by the exceptions, or ground of appeal, and the}'- determine whether the issues will be of law or of fact. Therefore the practice has been for the appellant, who desires a trial by jury, to give notice thereof under rule 28 at.the time of serving his exceptions, or at any time within ten days thereafter, .and for the respondent, if he desires such a trial, to serve his notice of motion therefor within ten days after service of the exceptions upon him, and, of course, as provided in the rule, either party may, within four days after the service of his opponent’s notice upon him, give notice that he will ask for additional issues; and we hold that to be the proper practice.
2, 3
It follows that, if either party fails to serve the notice within the time required by the rule, the Court may hold that he has waived his right to move for issues, and refuse, on that ground, to entertain his motion. But it does not follow that the Court may not entertain such motions from either side after the lapse of the time specified in the rule, in the exercise of the discretion vested in it by section 225 of the Code of Civil Procedure, or that the Court may not', thereafter, of its own motion, or at the suggestion of either side, submit issues to a jury for its own enlightenment. Such has ever been the practice in equity cases.
4
But this is not an equity case, nor does the appeal involve issues of fact arising out of a case of an equitable nature.
In re Solomon's Estate,
74 S. C. 189; 54 S. E. 207;
Thames v. Rouse,
82 S. C. 40, 62 S. E. 254;
Mordecai v. Canty,
86 S. C. 470, 68 S. E. 1049. It is rather in the nature of a special proceeding under a statute (section 3581, Civil Code 1912), which, as uniformly construed by this Court (with the single exception of Apeler’s case,
supra,
of which more hereafter), givess to either party desiring it the right to a trial
de novo
by a jury in the Circuit Court of any issue of fact raised on such appeal, when the question is “will or no will.” See the case next above cited; also,
Ex parte Jackson, 67
S. C. 55, 45 S. E. 132; and
Briggs v. Caldwell,
93 S. C. 268, 76 S. E. 616. And it is not within the discretion of the Court to refuse either party that mode of trial, where the appeal involves issues of fact as to the validity of a will, provided, of course, that, it be demanded by the service of notice of motion for such issues, as required by rule 28; for the right of trial by jury, as any other civil right, may be waived by the failure to claim it within the time or in the manner provided by law.
We say this to prevent any erroneous impression or misapprehension' from what has been said hereinbefore with reference to the discretionary power of the Court to grant or refuse motions for the reference of issues to a jury in equity cases pending in the original jurisdiction thereof and on appeals thereto from the probate Court which involves issues of fact arising in cases of an equitable nature.
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The opinion of the Court was delivered by
Mr. Justice Hydrick.
The appellant, Meier, as executor thereof, sought to prove a paper purporting to be the will of Mrs. Meta H. C. S. Rodenberg, deceased, in the probate Court for Dorchester. By decree, filed August 23, 1918, the Court rejected the alleged will. Meier gave due notice of appeal to the Circuit Court, and on September 6, 1918, filed therein a certified copy of the record from the probate Court, as required by section 64 of the Code of Civil Procedure. On January 3, 1919, respondents served notice on Meier of their intention to apply to the Court for an order, framing issues (o be submitted to a jury on the hearing of the appeal. Against Meier’s objection that the notice was not given within the time allowed by law, the Court granted the order prayed •"or by respondents, and that is the basis of the sole ground >f appeal to this Court.
1
Section 66 of the Code of Civil Procedure provides: “When such certified copy (that required by section 64) shall have been filed in the Circuit Court, such Court shall proceed to the trial and determination of the question, according to the rules of law; and if there shall be any question of fact or title to land to be decided, issues may be joined thereon under the direction of the Court, and a trial thereof had by jury.”
By the terms of that section, trial by jury on appeal of issues of fact is not demandable as of right, but may be allowed in the discretion of the Court; and, when allowed, the issue is to be joined under the direction of the Court; hence, the practice has prevailed, ever since the adoption of the Code, for the party (appellant or respondent) who may desire a trial by jury of any issue of fact on such appeals, to move the Court, on due notice to the opposite party, for an order framing such issues.
Ex parte Apeler,
35 S. C. 417, 14 S. E. 931, and cases cited by the. Court. The Code of Procedure does not prescribe the time within which such motion shall be made. But, as most of the issues of fact arising on such appeals are issues in causes of an equitable nature, by common consent of the bench and bar, rule 28 of the Circuit Court has been applied to the framing of issues on such appeals.
That rule provides that “In equity cases, where a trial by jury of issues of fact may be desired, the party desiring a jury trial shall, within ten days after issue joined, give notice in writing of his intention to move the Court” for an order framing such issues, and if the adverse party desires any other issues to be submitted, he shall, within four days after service of the notice upon him, serve notice that he will move the Court at the same time for the submission of such additional issues as he may desire, and the Court may settle the issues, if any are deemed necessary.
It appears from a glance at that part of the rule which is above quoted that it was originally intended to apply to equity causes pending in the original jurisdiction of the Circuit Court, in which the issue is joined, when the answer is served, and, therefore, the time is specified in the rule within which the notice of the several motions for issues must be served. And while that rule was not originally intended to apply to the framing of issues on appeals from the probate Court, nevertheless, in the absence of any statutory pro
vision, or other applicable rule, it has been applied in such cases ever since the adoption of the Code, and has served the purpose fairly well.
But, as far as we have been able to discover, this is the first case in which this Court has been called upon to decide the question: When is the “issue joined” within the meaning of the words of the rule, as applied to such appeal ? Clearly, they do not mean when the answer is served in the probate Court, for, at that time, it cannot be known whether there will be an appeal, nor by which side; hence they must be costrued to mean when the issue on appeal is joined.
Now, the issues on appeal are made by the exceptions, or ground of appeal, and the}'- determine whether the issues will be of law or of fact. Therefore the practice has been for the appellant, who desires a trial by jury, to give notice thereof under rule 28 at.the time of serving his exceptions, or at any time within ten days thereafter, .and for the respondent, if he desires such a trial, to serve his notice of motion therefor within ten days after service of the exceptions upon him, and, of course, as provided in the rule, either party may, within four days after the service of his opponent’s notice upon him, give notice that he will ask for additional issues; and we hold that to be the proper practice.
2, 3
It follows that, if either party fails to serve the notice within the time required by the rule, the Court may hold that he has waived his right to move for issues, and refuse, on that ground, to entertain his motion. But it does not follow that the Court may not entertain such motions from either side after the lapse of the time specified in the rule, in the exercise of the discretion vested in it by section 225 of the Code of Civil Procedure, or that the Court may not', thereafter, of its own motion, or at the suggestion of either side, submit issues to a jury for its own enlightenment. Such has ever been the practice in equity cases.
4
But this is not an equity case, nor does the appeal involve issues of fact arising out of a case of an equitable nature.
In re Solomon's Estate,
74 S. C. 189; 54 S. E. 207;
Thames v. Rouse,
82 S. C. 40, 62 S. E. 254;
Mordecai v. Canty,
86 S. C. 470, 68 S. E. 1049. It is rather in the nature of a special proceeding under a statute (section 3581, Civil Code 1912), which, as uniformly construed by this Court (with the single exception of Apeler’s case,
supra,
of which more hereafter), givess to either party desiring it the right to a trial
de novo
by a jury in the Circuit Court of any issue of fact raised on such appeal, when the question is “will or no will.” See the case next above cited; also,
Ex parte Jackson, 67
S. C. 55, 45 S. E. 132; and
Briggs v. Caldwell,
93 S. C. 268, 76 S. E. 616. And it is not within the discretion of the Court to refuse either party that mode of trial, where the appeal involves issues of fact as to the validity of a will, provided, of course, that, it be demanded by the service of notice of motion for such issues, as required by rule 28; for the right of trial by jury, as any other civil right, may be waived by the failure to claim it within the time or in the manner provided by law.
We say this to prevent any erroneous impression or misapprehension' from what has been said hereinbefore with reference to the discretionary power of the Court to grant or refuse motions for the reference of issues to a jury in equity cases pending in the original jurisdiction thereof and on appeals thereto from the probate Court which involves issues of fact arising in cases of an equitable nature.
In Apeler’s case, no legal notice of the application to the' Court for the framing of issues was given, as required by the rule, and there were other errors and irregularities pointed out in the opinion which prejudicially affected the rights of the appellant; therefore, the judgment was right. But the Court went further than was necessary to the decision, and held that neither party had the right to a trial
de novo
by
jury in the Circuit Court, because the action was not one “for the recovery of money only, or specific real or personal property,” according to the provisions of section 274 (now 312) of the Code of Procedure. In so holding, the Court evidently overlooked the fact that, while that section does provide that actions, of the kind specified must be tried by jury, unless that mode of trial is waived, it does not declare that they are the only actions which must be so tried; or, else, it overlooked the fact that the case in hand was not technically tin action, but a special proceeding under a statute which gave the parties the right to a trial by jury in the Circuit Court, if properly claimed. There are other cases than these specified in section 312, whether we call them actions or special proceedings, in which trial by jury is demandable as of right, as, for instance, proceedings in ejectment of tenants, and for the ascertainment of the compensation for rights of way, and others that need not be mentioned.
5
What we have said would be conclusive of the issue made by the appeal in favor of the appellant’s contention but for the fact that the Court had the power, as above stated, to be exercised in its'discretion, to relieve the respondents of the consequences of their failure to make their motion within the time prescribed by rule 28, as herein construed, and also the power of its own motion, or at the sugggestion of either party, after the lapse of the time prescribed by the rule, to refer the issues of fact to a jury. Having granted the order,' without stating any reason for doing so, we must assume that the Court predicated its action upon legal grounds
(Stanford v.
Cudd, 93 S. C. 367, 76 S. E. 986), and affirm the order.
Affirmed.