April 25, 1911. The opinion of the Court was delivered by This is an appeal from an order of reference.
The following statement of the facts appears in the record:
"On April 28, 1908, an action was instituted in the Court of Common Pleas for Greenville county, by plaintiff above named, against the defendants above named, for the partition of certain real estate, which belonged to H.M. Goodlett, deceased, the father of the plaintiff and the defendants, except Queen V. Goodlett, who was his wife. The defendants answered, admitting the general allegations of title, interest and so forth, but alleging that the plaintiff was a person of unsound mind and legally incapable of bringing the action. The cause was referred to the master to hear and determine all the issues.
"Pending the reference an action was instituted in the same Court on May 28, 1908, by Queen V. Goodlett, Max H. Goodlett, William J. Goodlett, O. Mills Goodlett and Carrie Hunt, as plaintiffs, against Henry Ward Goodlett, as defendant, for the purpose of having him adjudged a person of unsound mind. The petition was served upon the defendant, and O. Mills Goodlett was appointed his guardian ad litem. The cause was tried before Judge Featherstone at Greenville, June 16, 1909, and upon issues submitted the jury found that Henry Ward Goodlett was a person of unsound mind, without sufficient mental capacity to transact the ordinary business of life. Upon the call of the case Mr. Adam C. Welborn applied for leave to file an answer for Henry Ward Goodlett, which he was allowed to do, denying the allegations of the petition, and Mr. Welborn conducted the case for Henry Ward Goodlett. On *Page 458 the same day, in open Court, the presiding Judge signed an order, based upon the finding of the jury, referring it to the master to suggest a suitable person to act as committee for the defendant. On June 24, 1909, the master held a reference, without notice to Mr. Welborn, and reported the same day, recommending O. Mills Goodlett as committee, fixing the bond at $2,000, and a fee for Cothran, Dean Cothran, plaintiff's attorneys, of $200. This report was confirmed by Judge Featherstone June 25, 1909. O Mills Goodlett qualified as committee.
"Thereafter, on November 4, 1909, a reference in the first partition suit was held. The defendants were allowed, by supplemental answer, to set up the proceedings in the lunacy case, in which Henry Ward Goodlett had been declared non compos mentis.
"The master thereupon signed an order, and reported that all further proceedings in the partition case should be suspended until the committee should have been substituted, in the stead of Henry Ward Goodlett, which report was confirmed by the Court. No steps have been taken looking to such substitution.
"On January 18, 1910, an action was instituted in the Court of Common Pleas for Greenville county by Max H. Goodlett and O. Mills Goodlett, as plaintiffs, against William J. Goodlett, Henry Ward Goodlett and Carrie Hunt, as defendants, for the partition of the real estate of M.H. Goodlett, deceased, the same with some corrections, as was the subject of the first partition. This action has proceeded regularly to judgment, and deeds passed to all of the heirs at law for the portions allotted to them respectively.
"The master's report upon the petition has been approved by the Court, and all proceedings confirmed."
On the day of June. 1910, Mr. Welborn served upon Messrs. Cothran, Dean Cothran a notice that he "would make a motion for an order vacating and setting aside the judgment for partition of real estate in the above *Page 459 stated case (Max H. Goodlett et al., plaintiffs, against Ward Goodlett et al., defendants), and dismissing the complaint in said case, on the ground that another action for partition of the same real estate, among the same parties, was pending at the time the above entitled action was commenced, and pursued to judgment, and the action first commenced is still pending."
Upon hearing the motion his Honor, Judge Watts, passed an order, in the case of Henry Ward Goodlett, plaintiff, against Queen V. Goodlett et al., defendants, requiring the master "to report if A.C. Welborn is entitled to a fee, and, if so, what would be a reasonable and suitable fee for said Adam C. Welborn, plaintiff's attorney in said case, for his services in said case." Also, "a reasonable and suitable fee for Adam C. Welborn for representing the defendant, by order of the Court, in the case of Queen V. Goodlett et al. against Henry Ward Goodlett, a proceeding to declare the defendant of unsound mind."
The plaintiff, Henry Ward Goodlett, by O. Mills Goodlett, his committee, appealed from said order upon the following exceptions:
1. "No notice was given of a motion for said order; the notice given, and which was the motion for trial, was of a motion to set aside the judgment of partition in the case of Max H. Goodlett et al., upon the ground that another action was pending at the time said suit was commenced and pursued to judgment.
2. "The master having signed an order and reported that the first partition suit be suspended until the committee of Henry Ward Goodlett should be substituted in the stead of the plaintiff, and said report having been confirmed by the Court, the presiding Judge could not sign any order therein until such substitution be made.
3. "If the attorney, Adam C. Welborn. Esq., had any claim against Henry Ward Goodlett, for professional services in the partition case instituted by him, the proper *Page 460 remedy for him to pursue was an action upon his contract or for quantum meruit, and not an order of reference in the partition suit.
4. "If the attorney, Adam C. Welborn, Esq., had any claim against Henry Ward Goodlett, for professional services in the inquisition proceeding, in which he was allowed, upon his own motion, to file an answer for said Goodlett, his proper remedy was an action against the said Goodlett, or his committee, for such services, and not an order of reference in a partition suit, begun previously to such inquisition proceedings."
The following statement is set out in the record: "Upon the call of the motion the presiding Judge, over objection of counsel opposing, passed the following order" (the order of reference hereinbefore mentioned).
It will thus be seen that the grounds stated in the exceptions were not relied upon by the appellant, in the Circuit Court, and the presiding Judge did not rule upon them. They are, therefore, not properly before this Court for consideration.
There is another reason why the exceptions cannot be sustained. An order of reference is administrative in its nature, ordinarily discretionary, and not appealable unless it deprives the appellant of a mode of trial to which he is entitled by law, and the appellant did not object to said order when the motion was made, on the ground that it deprived him of such right. Devereaux v. McCrady,49 S.C. 423, 27 S.E. 467; Green v. McCarter, 64 S.C. 290,42 S.E. 157; Gregory v. Perry, 66 S.C. 455, 45 S.E. 4;Fludd v. Assurance Co., 75 S.C. 315, 55 S.E. 762.
Appeal dismissed.
MR. JUSTICE WOODS did not sit in this case. Petition for rehearing refused and stay of remittitur revoked by order dated April 25, 1911.