71 S.E. 992 | S.C. | 1911
July 24, 1911. The opinion of the Court was delivered by
Plaintiff brought this action to recover damages of defendant for the wrongful death of his intestate, Daniel Brown. He recovered a judgment for $2,000.00, which was reversed on appeal, and a new trial was granted.
The Circuit Court held that sections 2852 and 2853, 1 Code, 1902, under which the action was brought, expresses the legislative intent that the amount recovered in such actions shall belong exclusively to the parties mentioned therein, for whose benefit they are brought, without being liable to diminution for costs or any other charges, and dismissed the rule. *373
Section 2852, in so far as it is pertinent to the present inquiry, reads: "Every such action shall be for the benefit of the wife or husband and child, or children of the person whose death shall have been so caused * * *. And the amount so recovered shall be divided among the before-mentioned parties, in such shares as they would have been entitled to if the deceased had died intestate and the amount recovered had been personal assets of his or her estate." Section 2853 provides that "the executor or administrator, plaintiff in the action, shall be liable to costs, in case there shall be a verdict for the defendant, or nonsuit or discontinuance, out of the goods, chattels and lands of the testator, or intestate, if any, and if none, then out of the propergoods and chattels of such executor and administrator." The words of the section italicized were left out by the amendatory act of 1903 (24 Stat., 29) which seems to have been overlooked on Circuit.
We agree with the Circuit Court that the statute plainly expresses the intent that the amount recovered in such actions shall belong to the persons for whose benefit they are brought; and that, although the statute provides that the action shall be brought in the name of the executor or administrator of the deceased, the amount recovered shall, nevertheless, not be assets of his estate, so as to liable to the demands of the creditors thereof. We agree, also, that, by the terms of section 2853, the decedent's estate is primarily liable for costs in the cases mentioned therein. It does not follow, however, that the amount recovered must, in all cases and under all circumstances, be distributed among the persons entitled thereto without any diminution for costs or other charges; and we do not think the statute expresses any such intent. Nor do we think that conclusion must necessarily be inferred from the provision making the estates of decedents primarily liable for costs in such actions. Such a construction of the statute would, in some cases, work results so inequitable and unjust that *374 nothing short of an unequivocal expression of such an intent would induce the Court to adopt it. In cases, such as this, where the decedent left no estate whatever, the necessary costs and expenses of administration, and such as the administrator must necessarily incur in the prosecution of the action, must be paid out of the amount recovered, or not at all. The Court would certainly not require the amount recovered to be distributed among the persons entitled without first requiring the payment of the costs and expenses without which nothing could have been recovered. But, aside from this construction of the sections above quoted, ample authority is found in section 330 of the Code of Civil Procedure for the payment of such costs out of the amount collected. That section reads: "In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right; but such costs shall be chargeable only upon or collected of the estate, fund, or party represented, unless the Court shall direct the same to be paid by the plaintiff or defendant personally, for mismanagement or bad faith in such action or defense."
All the sections above cited were re-enacted in the codification of 1902 and should, therefore, be construed together so as to harmonize them, if possible. But there was an irreconcilable conflict between the provisions of section 2853 and section 330 prior to the amendment of section 2853, hereinbefore referred to, whereby the words of that section, which made the executor or administrator personally liable for costs in the cases therein mentioned, were omitted; because the one made an executor or administrator personally liable for costs, if there were no assets of his decedent's estate, while the other exempted him from liability, unless he was made so by direction of the Court for mismanagement or bad faith. So long as that conflict existed, the provisions of section 330 prevailed, because they were *375
enacted, in 1870, subsequent to the enactment of section 2853, in 1859. Ins. Co. v. Bradley,
The contention of respondent that the parties ultimately entitled to the fund should have been brought before the Court by service of the rule upon them cannot be sustained. They are represented by the administrator, under the authority of the statute; and, in the absence of any showing of fraud or collusion on his part, it is not necessary that they be otherwise before the Court than as represented by him.
It remains to inquire whether the interests of the widow and two of the sons of decedent are exempt to them respectively, as heads of families, under the Constitution and laws of this State, which provide that $500.00 worth of personal property shall be "exempt from attachment, levy and sale under any mesne or final process, issued from any Court, to the head of any family residing in this State." Appellant contends that an order requiring one judgment to be set off against another would not violate the provision of the Constitution above quoted, because it is neither an attachment, levy or sale of property, under any mesne or final process issued from any Court. Upon a strict construction of the Constitution, such an order would not violate its letter, but it would, in many cases, violate its spirit and intent. The words attachment, levy and sale were used in the Constitution and statutes, because the methods thereby indicated are the ones most usually adopted in the *376
application of a debtor's property to the payment of his debts. An order of set off is merely another mode of execution whereby the debtor's property is applied to the satisfaction of his debts. We feel quite sure the lawmakers never intended for this benign provision of the law to be set at naught by such a literal construction, and we are not inclined to adopt it. With few exceptions, the Courts have held that exemption laws are remedial in their nature and should receive a liberal construction, — such as will advance the remedy and suppress the mischief intended. In the case of Harley v. Weathersbee,
The jurisdiction of the Court to set off one judgment against another is equitable in its nature, and should be exercised so as to do justice between parties. It is not founded on any statute or fixed rule of Court, but grows out of the inherent equitable jurisdiction which the Court exercises over suitors in it. Such motions are, therefore, addressed to the discretion of the Court, — a discretion which is not arbitrarily or capriciously exercised, but according to settled principles.Ex parte Hiers,
Defendant's judgment should have been set off against the interests of those beneficiaries under the judgment who are not heads of families in satisfaction thereof pro tanto.
Reversed.