October 10, 1905. The opinion of the Court was delivered by This is an action to set aside certain transactions for fraud, to subject the lands described in the complaint to the payment of the claims therein mentioned, and for an accounting as to rents and profits.
By order of the Court, a referee was appointed to take the testimony, and report his conclusions of law and fact. At the close of the plaintiffs' testimony a motion was made to *Page 438 dismiss the complaint as to the defendants, Arthur R. Garner and Maggie Garner, on grounds which are set out in the report of the referee.
The report of the referee was as follows: "This case was referred to me by order of the Court, bearing date the day of ____ , to take testimony and report on all issues. Pursuant to this order, I have taken the testimony, which is herewith submitted. At the conclusion of the testimony on behalf of the plaintiffs, the attorneys for defendants moved to dismiss the case as to the defendants, Arthur R. Garner and Maggie Garner, on the following grounds, to wit:
"First. Upon the ground of an utter failure to prove and sustain the action against them, under Rule 30 of the Circuit Court, and because the proof adduced before the referee was insufficient to support the cause of action against the said defendants.
"Second. Because it appears from the pleadings and proof of the plaintiffs that the land in question was sold for $3,428, and that the plaintiffs have received the same and have not returned, or tendered, the same to the defendants, or either of them.
"After hearing argument, the motion is granted, on the ground first stated, to wit: because I find that there is not sufficient testimony to make out a case against the defendants, Arthur R. Garner and Maggie Garner."
Both the plaintiffs and the defendants, Arthur R. Garner and Maggie Garner, filed exceptions to the report.
His Honor, the presiding Judge, made the following order: "This cause came on to be heard on exceptions to the report of the referee, to whom was referred all issues of law and fact. A motion by the defendants, Arthur R. Garner and Maggie Garner, was made on the close of plaintiff's testimony, to dismiss the complaint as to them, upon grounds fully set forth in their motion. The referee granted defendants' motion on the first ground set forth, dismissing the complaint as to Arthur R. Garner and Maggie Garner. *Page 439
"It appearing from the testimony that there was some evidence going to prove that at the sale of the real estate mentioned in the complaint as having been made at Darlington in 1884, there was an attempt to chill the bid at such sale, which resulted in sale of same at less than its real value, to the detriment and injury of the rights of the plaintiffs, then wards of the defendant, Joseph F. Garner; and it appearing that said Arthur R. Garner and Maggie Garner were advantaged by the chilling of the said bid, the Court is of the opinion that the referee erred in dismissing the complaint as to those defendants.
"It is so ordered. Ordered, further, that the cause be remanded to the referee to take further testimony therein, responsive to the allegations in the pleadings."
The said defendants appealed upon exceptions assigning error in reversing the referee upon the first ground of the motion to dismiss the complaint, and in refusing to reverse his ruling upon the second of said motion. The motion to dismiss the complaint on the ground that there was no testimony tending to sustain the allegations thereof was, in effect, a motion for a nonsuit, which cannot properly be made in an equitable action. Woolfolk v. Man'g. Co., 22 S.C. 332;McClenaghan v. McEachern, 47 S.C. 446,25 S.E., 296; Barnes v. Rodgers, 54 S.C. 115, 31 S.E., 885; Gilreath v. Furman, 57 S.C. 289, 35 S.E., 516; Railway v.Beaudrot, 63 S.C. 266, 41 S.E., 299. The general principle is thus stated in 6 Enc. of Pl. and Pr., 830: "Nonsuits are applicable only to cases arising before common law tribunals, and cannot be resorted to in actions of an equitable nature, unless by virtue of statutory authority." In cases brought to trial before a jury, the presiding Judge rules upon the questions of law and the jury determines the issues of fact. The object of the nonsuit is to withdraw the case from the jury upon a question of law to be decided by the presiding Judge. It is the dual nature of the trial that gives rise to the practice of making a motion for nonsuit. There is no necessity for resorting to this practice in chancery *Page 440 cases, as the questions of law and issues of fact are to be determined by the same person except in certain cases not necessary to mention.
The case under consideration is a good illustration that it is far better for the referee to decide the issues after all the testimony has been submitted, instead of granting a nonsuit or dismissal at the close of the plaintiffs' testimony; for the reason that the Court, when called upon to decide whether there was any testimony, to sustain the allegations of the complaint, is compelled to canvass the evidence without the aid of the referee's findings of fact, as required by Rule 30 of the Circuit Court.
Another reason why the practice of granting nonsuits should not be sanctioned in equity cases is that it may not have the effect of a final judgment as to the rights of the parties, and the same question may afterwards arise when the plaintiff is able to supply the testimony which was lacking, and thus prolong litigation.
But waiving this objection, we are satisfied that the order of the referee was properly set aside by his Honor, the Circuit Judge.
As the case will be remanded for further proceedings, the Court deems it advisable to refrain from a discussion of the testimony in detail until the findings of fact have been made in the manner provided by Rule 30, hereinbefore mentioned.
It is the judgment of this Court, that the order of the Circuit Court be affirmed.
MR. JUSTICE JONES concurs in the result.