DeWalt v. Kinard

Citations

• 19 S.C. 286
• 1883 S.C. LEXIS 82

Syllabus

<p>1. Action was brought for recovery of real property and for injunction, and the answer denied the plaintiff’s title. Motion was then made by plaintiff, on the pleadings alone, for the payment of rent into court, the leasing of the land pending litigation, and for a reference to the master to take the testimony, and the motion was granted. Held, that the issue of title was a legal demand, triable by jury, and defendant’s failure to demand such a trial was not a waiver of this right.</p> <p>2. A claim of title in the complaint, together with an allegation of defendant’s insolvency and of danger of loss of rents — all of which are denied in the answer — do not make a case warranting the appointment of a receiver. Mr. Justice McGowan dissenting.</p> <p>3. A conclusion of fact, drawn by the Circuit judge from the allegations of the complaint and answer, reversed, because without any evidence to support it, or, at least, opposed to its manifest weight.</p> <p>4. It is not necessary that a plaintiff should give bond to entitle him to the appointment of a receiver for the collection of rents pending litigation; and the master of the court being appointed such receiver, no special bond need be required of him.</p> <p>5. On a motion preliminary to the hearing on the merits, it is error to grant relief beyond the terms of the notice.</p> <p>6. Upon the equitable issues raised in the case, testimony could be taken by the master, even without the consent of the other side; hut the legal issues cannot be referred without consent of all parties.</p> <p>7. Any errors apparent in the Circuit order may be madé the grounds of appeal. This case distinguished from Kaminer v. Hope, 18 S. Q. 561.</p>