Hall v. Hall

45 S.C. 4 | S.C. | 1895

The opinion of the Court was delivered by

Mr. Justice; Gary.

The facts in this case are set forth in the order of his Honor, Judge Benet, which will be incorporated in the report of the case. From this order, appellant has appealed to this Court on three exceptions, which will, also, be incorporated in the report of the case. Respondent’s attorneys, in their argument, urge the objection to the hearing of the appeal at this time, on the ground that the order of his Honor, Judge Benet, is not appealable.

1 The order of the presiding Judge involved the merits, in so far as the costs of the Supreme Court were involved, and as they were in no way dependent upon the final termination of the action, there is no reason why an order involving the merits as to them should not be appealable. This objection cannot, therefore, be sustained.

2 The first and second exceptions will be considered together, as they raise substantially the question whether the prevailing party in the Supreme Court has the right to tax the costs of the appeal before final judgment in the cause. The question is conclusively settled by the case of Huff v. Watkins, 25 S. C., 243. These costs are not within the discretion of the Circuit Judge sitting as a Chancellor. They do not fall within that statutory provision empowering the Judge to direct, in equity cases, which of the parties shall pay the costs. The question of setting off one judgment against another cannot be considered at this time, because the appellant has no judgment. A motion for that purpose can not properly be made until the judgments proposed to be set off have been entered up. These exceptions are sustained.

3 4 The third exception questions the correctness of the ruling of the presiding Judge, that the exceptions of the plaintiff to the ruling of the clerk were not taken in time, and should, for that reason, be dismissed. When the clerk of the court taxes the costs in a case, it is not the action of a court, but the judicial act of a ministerial officer; and, therefore, it is not necessary to file exceptions to his report within ten days after receiving written notice of the same, to prevent the party dissatisfied with it from having the same reviewed by the Court. The practice, where a party is dissatisfied with the taxation, is thus stated in Bradley v. Rodlesperger, 6 S. C., 290, cited with approval in Cooke v. Poole, 26 S. C., 326: “If the allowances made by the clerk for costs or disbursements are objected to by either party, the proper practice is to bring the matter before the Court on motion to correct such allowances.” There is no requirement of law that notice of this motion should be given within ten days after receiving written notice of the action of the clerk of the court in taxing the costs. The Circuit Judge, therefore, erred in ruling that the exceptions of the plaintiff to the rulings of the clerk were not taken in time and should for that reason be dismissed.

It is the judgment of this Court, that the order of the Circuit Court be reversed.