30 S.C. 229 | S.C. | 1889
The opinion of the court was delivered by
In this case it appears that on April 14, 1885, the plaintiff recovered a judgment by default against the defendant, F. J. Sanders, which was vacated and set aside by the order of Judge Cothran, bearing date March 81, 1886, which provided, as a condition precedent to its taking effect, “that the defendant file with the clerk an undertaking in the sum of six hundred dollars, with ample surety to be approved by the clerk, to pay whatever may be recovered of him for debt, interest, and costs herein, should the plaintiff finally prevail in the suit.” In pursuance of this order the said F. J. Sanders, with his co-defendant herein, Mike Brown, as his surety, on April 1, 1886, executed the required undertaking, which was filed with the clerk. The original action of J. F. Sanders, executor, against F. J. Sanders was subsequently tried, and in November, 1887, the plaintiff again recovered judgment, but for a less amount than his former recovery. From said last mentioned judgment the said F. J. Sanders appealed, and that appeal is now pending in this court.
In the meantime, we suppose from what is said in the order of Judge Aldrich, that an action had been commenced and was then pending on the undertaking, as we find in the “Case” a copy of a complaint by the clerk of the court against the defendants herein, with their answer thereto, based on the undertaking, which, together with an affidavit of Mike Brown, were used in opposition to the motion.
From the order refusing his motion the plaintiff appeals upon the following grounds: “1st. The process of execution against the surety is the plaintiff’s resulting right from the order allowing the undertaking and the executing of it upon recovery against defendant. 2nd. The question of contempt or of right to process is not affected by the Code of Procedure. 3rd. There is misapprehension in holding that ‘the order granting the undertaking is now under appeal,’ and that ‘an action is now pending in this court to test the validity of the order granting it.’ ”
The first ground raises a point which does not seem to have been considered by the Circuit Judge, as he manifestly treated the motion simply as an application for an attachment for a contempt ; but as the notice of the motion covered this point, as well as the matter of contempt, it is properly before us under this
It is true that it was contended, in the argument of this appeal, that the records of this court, which, however, were never incorporated into the “Case,” would show that at the time of the application for the order which was refused by Judge Aldrich, the appeal from the judgment recovered by the plaintiff against the defendant, F. J. Sanders, had been waived by a failure to perfect the appeal within the time required by law; but aside from the fact that it does not appear that such records were before Judge Aldrich when he refused the motion, and cannot therefore be considered in determining whether he committed any error in refusing the motion, these records ■ do not show that such appeal had ever been finally disposed of; and, on the contrary, they do show that the appellant was permitted to perfect his appeal and the same is now pending in this court.
We will next consider whether there was any error in refusing the other branch of the motion for the attachment for contempt. While it is true that the Circuit Judge seems to have fallen into an error in stating as one of his grounds for refusing his motion, that “the order granting the undertaking is now under appeal,”
The application for the attachment was based solely upon the ground that the order of the court had been disobeyed, and the notice of the motion was addressed to Mike Brown alone, and not to his co-defendant, F. J. Sanders. To sustain such an application two things must be shown: 1st. That there was an order requiring Brown to do something. 2nd. That he had disobeyed such order. But we look in vain for an order requiring Brown to do anything whatever, and, of course, it would be absurd to charge him with disobeying an order which never existed. The only order which we are able to find in the “Case” is one requiring F. J. Sanders to execute a specified undertaking with security to be approved by the clerk; and at the same time we find that such order has been fully complied with by the execution of the required undertaking by Sanders, with Brown as his surety, which appears to have been approved by the clerk.
While, therefore, it may be true that Brown has violated the obligation of his contract, evidenced by the undertaking, we do not see how it is possible to say that either he or Sanders has disobeyed any order of the court, for precisely wrhat the order required has been done. The order did not require Sanders and whoever might become his surety, to pay the amount which might finally be recovered in the original action, but it simply required them to enter into an obligation or undertaking to pay such
It seems to us clear, therefore, that in any view of the case, even stripped of all considerations growing out of an appeal from the judgment recovered by the plaintiff against the defendant, F. J. Sanders, and regarding the case as if there never had been any such appeal, there was no error in refusing the motion for attachment.
The judgment of this court is, that the order appealed from be affirmed.
See ante, page 207. — Reporter.