Opinion
12346
January 6, 1928.
Before BONHAM, J., Spartanburg, January, 1925. Reversed and remanded.
Action by F.L. Miles against Mrs. Ella J. Clyde and another. From an order of reference granted on defendants' motion over plaintiff's objections, plaintiff appeals.
Messrs. Carlisle Carlisle and J. Hertz Brown, for appellant, cite: Error to pass order of reference: Sec. 5660, Code; 83 S.C. 396; 130 S.C. 131; 132 S.C. 410; 133 S.C. 149; 132 S.C. 360.
Messrs. Nicholls, Wyche Byrnes, for respondents, cite: Foreclosure of lien: Sec. 5650, Code; 30 S.C. 262. To entitle party to jury trial must serve notice to that effect: Sec. 5660, Code. Order of reference: Sec. 593, Code Proc.; 34 S.C. 169; 24 S.C. 550.
January 6, 1928. The opinion of the Court was delivered by
The appeal in this case arises out of a proceeding to foreclose a mechanic's lien (a law case, Raines v. Sanders, 134 S.C. 284; 132 S.E., 581, and cases cited).
On motion of the attorneys of the defendants respondents, and over the protest of the attorneys for the plaintiff appellant, his Honor Judge Bonham made an order of reference to the Master for Spartanburg County to take the testimony, determine the issues of law and fact, and report the same.
From this order the plaintiff has appealed, and there is only one exception involving the question whether in a case of this kind a compulsory order of reference can be made.
Since a compulsory order of reference cannot be made in a law case ( Sumter Hardware Co. v. Fitchette, 133 S.C. 149; 130 S.E., 881. Moody v. Lumber Co., 136 S.C. 327; 134 S.E., 369. Keese v. Parnell 134 S.C. 207; 132 S.E., 620), there was error in granting the order of reference. The exception is sustained, and the order appealed from is reversed and the case remanded to the Circuit Court.
MR. CHIEF JUSTICE WATTS, and MESSRS. JUSTICES COTHRAN, BLEASE, and STABLER concur.