8 S.C. 100 | S.C. | 1876
The opinion of the Court was delivered by
On the 25th day of February, 1875, the presiding Judge signed an order that Macon B. Allen, plaintiff, have leave to enter judgment against the County of Charleston for $403.72 and costs. Judgment was entered.
On the same day the assignee issued an execution on this judgment in his own name as trustee and plaintiff’s attorney, he being at the time one of the attorneys of the Court. It appears that the attorney who was the attorney on record previous to the assignment of the judgment to T. M. Mordecai subsequently to the assignment agreed to submit the case to a Special Referee for trial. The Referee reported, allowing $36.50, to which no exceptions were filed.
On the 4th day of May, 1876, T. M. Mordecai, assignee, moved His Honor Judge Reed to rescind so much of the order of April ISfchj 1875, as applied to 'this case, alleging that the submission of the case to the Special Referee for trial by the original attorney of the plaintiff was without his knowledge or consent, and was without authority, — the right of the original attorney having ended with .the assignment of the judgment. ■
This motion was refused, and an order made referring the ease back to the Special Referee for trial de novo, so as to allow the assignee an opportunity of proving his ease. From this order, refusing to rescind the order of April 13th, 1875, the assignee appeals to this Court.
The trustee, though an attorney of the Court, niay not have had authority to issue an execution on the judgment, obtained for the plaintiff by the attorney who issued the summons and complaint, and was therefore the attorney on record, without first obtaining an order substituting himself as attorney thereon. While this may be true, the action of the attorney on record in consenting to submit the case to a Referee for trial was without authority. All the right and interest in the judgment had been legally transferred to the appellaut, and without his sanction, and certainly without notice to him, no proceeding could be entertained which could affect the legal rights vested in him by the assignment. The authority of the attorney of record is determined by the judgment, though on actual receipt of the money he may acknowledge satisfaction.—Treasurer vs. McDowell, 1 Hill, 185.
The other questions in this case have been fully considered and determined in the ease of Ex parte George W. Williams et al, in re
So much of the order of April 13th, 1875, as applied to this case must, therefore, be rescinded, and.it is so ordered.
The motion is granted.
