55 S.C. 446 | S.C. | 1899
The opinion of the Court was delivered by
An action was commenced in 1890 by John Allgood, a non-resident, against V. B. Robertson, as administrator of the estate of Wiley Hill, deceased, and others, for the purpose of partitioning the lands of Wiley Hill, according to the provisions of his will. On motion of N. B. Dial and H. Y. Simpson, attorneys for Nannie C. Cannon, who held a mortgage on the land described in the complaint, executed by Alvin H. Hill, R. PI. Young and G. W. Shell, his Honor, Judge Witherspoon, on the 21st of February, 1891, granted an order requiring the plaintiff “to
The plaintiffs’ attorneys, after giving' due notice, made a motion to set aside the decree of his Honor, Judge Hudson, “on the ground that the Court has no jurisdiction of the subject matter, and Judge Hudson has no power to overrule another Circuit Judge, and had no jurisdiction of the person of the petitioners.” The following is the affidavit of N. B. Dial and H. Y. Simpson in opposition to said motion: “Personally appeared N. B. Dial and H. Y. Simpson, who, first being duly sworn, sáy: that they were the attorneys for Patrick Cannon, Nannie C. Camion, G. W. Shell, and R. H. Young, defendants, in the above stated case, -and that on their motion, as attorneys for said defendants, the plaintiff, a non-resident, was required to deposit the sum of $100 as security for the'costs in said case by a fixed day; that these affiants agreed with the attorneys for the plaintiff to waive this requirement of this order, and to go into the trial of the. case without having the plaintiff to make the deposit as security for costs, and it was with this understanding and agreement that the case was tried without the security being given as required by the order.”
His Honor, Judge Townsend, filed the following order: “This is a motion to open up the judgment in the above stated case. The parties seeking to accomplish said end rely upon three grounds: First, that W. E. Hill was never properly before the Court in said action. Second, that W. P. Hill was never properly before the Court in said cause.
.
The petitioners appealed upon the following exceptions: “I. Because his Honor, D. A. Townsend, erred, it is respectfully submitted, in holding that the defendants, G. W. Shell, R. H. Young, Nannie C. Cannon and Patrick Cannon, or their attorneys, waived, or 'had the power to waive, their rights under the terms and penalties of Judge Witherspoon’s order, requiring security for costs; and he erred in not holding that such alleged waiver, or any agreement of theirs for a waiver,> could not affect the rights and liabilities of their codefendants. II. Because his Honor, Judge Townsend, should have held, and he erred in not holding, that Judge Hudson had no power to vary the terms, conditions
The appellants rely solely upon the 'fact that the plaintiff failed to comply with the order requiring security for costs, to show that his Honor, Judge Hudson, did not have jurisdiction of the case. They, however, had the right to1 waive compliance with the requirement that the money should be deposited within the time mentioned in the order. Garrett v. Niel, 39 S. C., 560; Fonville v. Richey, 2 Rich., 10. The recitals in the decree of Judge Hudson, the affidavits of N. B. Dial and H. Y. Simpson, and the findings of fact in the order of Judge Townsend, show conclusively that the appellants contested the case upon its merits after the time for depositing the money had expired, and that they not only thus impliedly waived the right to insist upon compliance with said order, but in express terms, by their attorneys, waived this right.
It is the judgment of this Court, that the order of the Circuit Court should be affirmed.