Cunningham v. Cauthen, 25 S.E. 87

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

In this case both sides appeal from an order made by his Honor, Judge Townsend, on motion to correct the taxation of costs as allowed by the clerk. It appears that the original decree was rendered by his Honor, Judge Witherspoon, from which both sides appealed, which was disposed of as appears by the report of the case in 37 S. C., 123, from which it will be seen that the plaintiffs were wholly unsuccessful in that appeal, while the defendant succeeded in materially modifying the Circuit decree. Mr. Justice McGowan, delivering the opinion of this Court, in speaking of the exceptions to that portion of the decree of Judge Witherspoon which adjudged “that the costs of this action be paid by the estate of Andrew J. ELibler,” used the following language: “As the case will have to go back to the circuit to reform the account in some respects, we think it better that the order as to costs should await that accounting. The order as to costs is reversed without prejudice.” The case having been remanded to the Circuit Court, came on to be heard by his Honor, Judge Ernest Gary, who rendered a decree from which both sides again appealed, as will be seen by reference to 44 S. C., 95, where it appears that both appeals were dismissed and the decree of Judge Gary was, practically, affirmed. In that *163decree Judge Gary, in treating of the matter of costs, used the following language: “After considering the facts, I agree with Judge Witherspoon that the costs of this action should be paid out of the estate of Andrew J. Kibler, and I so decree.” The foregoing statement has been deemed necessary for a proper understanding of what seems to be the main question presented by the present appeal. The other facts may be gathered from the order of Judge Townsend, which with the grounds of appeal, both on the parts of the plaintiffs and defendants, should be incorporated in the report of this case.

1 The main question, as we understand it, is as to which side is entitled to the costs of the appeals to the Supreme Court from the decree of Judge Witherspoon; and also whether either side is entitled to the costs of the appeals from the decree of Judge Gary. In the case of Huff v. Watkins, 25 S. C., 243, approving the previous decision in Cleveland v. Cohrs, 13 S. C., 397, it was held distinctly that the statutory provision as to costs of an appeal to the Supreme Court was intended to allow such costs to the prevailing party in the appeal, without regard to the final result of the action. These two cases, as well as the subsequent case of Sease v. Dobson, 36 S. C., 554, were distinctly recognized and followed in the very recent case of Sullivan v. Latimer, 43 S. C., 262. It must now be regarded as settled, that the prevailing party in an appeal, whether he be appellant or respondent (Sease v. Dobson, supra,) is entitled to his costs in prosecuting his appeal or resisting that of his adversary, without regard to the final result of the action in the Circuit Court.

2 It is contended, however, on the part of the plaintiffs that this question has been concluded by the decrees of Judge Witherspoon and Judge Gary, adjudging that the costs of the action, which, it is claimed, include the costs of the appeals, must be paid out of the estate of Kibler, defendant’s intestate. This contention is based upon an entire misconception of the true *164intent and effect of those decrees. It is very manifest that the decree of Judge Witherspoon was not intended to embrace, and could’ not have embraced, the costs of any appeal from his decree, for no such appeal had been taken when that decree was filed, and it would have been impossible for any one to know that any such appeal would thereafter be taken; and it is equally manifest from the terms used by Judge Gary in his decree, that he did not intend to embrace in his decree any provision that the costs of appeal should be paid out of the estate of Kibler, for he says, expressly: “I agree with Judge Witherspoon that the costs of the action should be paid out of the estate of Andrew J. Kibler;” showing very clearly that his intention was to make the same decree, as to costs, which had been made by Judge Witherspoon, which, as we have seen, could not possibly be construed as embracing the costs of appeal.

3 But even if it were possible to construe the decrees of Judges Witherspoon and Gary, as contended for by plaintiffs, then we would be compelled to hold that those Judges had no power to make any decree to that effect. For, in the very recent case of Hall v. Hall, 45 S. C., 32, it was distinctly held that the prevailing party in the Supreme Court has the right to tax costs incurred on appeal, and they do not fall within the statutory provision empowering the Circuit Judge to direct, in equity cases, which of the parties shall pay the costs. This ruling was in direct conformity to a remark made by the late Chief Justice Simpson, in Rabb v. Flenniken, 32 S. C., at page 195, which, though then a dictum, has since become the law by the direct decision in Hall v. Hall supra. The several cases cited by counsel for plaintiffs as being in conflict with the view hereinbefore taken, do not, in our judgment, present any such conflict, for the reason that the question which we have been considering was not made in any of those cases.

It seems to us, therefore, that the Circuit Judge erred in refusing defendant’s motion for an order directing the clerk *165to tax his costs in his appeal from the decree of Judge Witherspoon, in which he prevailed, in large part at least; and in refusing his motion for an order directing the clerk to tax his costs incurred in successfully resisting the appeal of plaintiffs from Judge Witherspoon’s decree.

4 As to the costs of the two appeals from Judge Gary’s decree, in which both sides were unsuccessful, while it might be that plaintiffs would be entitled, under the foregoing cases, to the costs of successfully resisting the appeal of defendant, yet, on the other hand, upon the same principle, the defendant would be entitled to his costs in successfully resisting the appeal of the plaintiffs from that decree, and thus one set of costs would set off against the other, and the practical result would be that neither side should be allowed to tax costs against the other on these appeals.

5 The next question which we propose to consider is, whether there was any error in allowing plaintiffs $8 for the cross-interrogatories propounded to the witness, P. H. Nelson. This witness was not examined under a commission sent to commissioners under the long and well settled practice, but he was examined under the provisions of the act of 1883, 18 Stat., 373. In this act, which, in terms, is declared to be for the purpose of providing an additional method to those then provided, by law for obtaining the testimony of a witness in certain cases, there is no provision for such costs as were here allowed; and in the absence of any such provision, the well settled rule is, that no such allowance can be granted, as the party who claims costs must be able to put his finger upon the statute allowing the costs in question. There is a provision for such an allowance, where a witness is examined by commission; but where he is examined under the provisions of the act of 1883, no cross-interrogatories are necessary (Moore v. Willard, 30 S. C., 615), and if a party chooses voluntarily to use cross-interrogatories, he can make no charge for the same, in the absence of any statute allowing such a charge.

*166As to the other points upon which exceptions are taken to the order of the Circuit Judge by these appeals, we agree with him, for the reasons stated in his order; and, hence, such points need not be further considered.

The judgment of this Court is, that the order of the Circuit Judge, except where it conflicts with the views herein presented, be affirmed; and as to those points wherein it is in conflict with this opinion, it be reversed, and that the case be remanded to the Circuit Court for the purpose of having the views herein announced carried into effect.

Case Details

Case Name: Cunningham v. Cauthen

Court Name: Supreme Court of South Carolina

Date Published: Jul 16, 1896

Citations: 25 S.E. 87; 47 S.C. 150; 1896 S.C. LEXIS 111

Court Abbreviation: S.C.