Newbold v. McCrorey , 103 S.C. 299 ( 1916 )

January 10, 1916. The opinion of the Court was delivered by This is an action to foreclose a mortgage.

The facts are fully stated in the decree of his Honor, the presiding Judge.

The first question that will be considered, is raised by the following assignment of error: "Because his Honor, the special presiding Judge, for the November term of Court, 1914, did not file his decree, until the 27th day of February, 1915; that said presiding Judge had then lost jurisdiction of matters in Chester county; that said decree is null and void."

The record contains the statement, that the whole case was heard by the presiding Judge, at the November term, 1914, in open Court, without a jury, and the testimony taken down by the stenographer.

Section 17, art. V of the Constitution, provides, that it shall be the duty of the Judges of the Circuit Courts, to file their decisions within sixty days from the rising of the last Court of the Circuit, then being held. The cases of State v. Fullmore, 47 S.C. 34, 24 S.E. 1024; Griffith v. Cromley,58 S.C. 448, 36 S.E. 738, and Stack v. Haigler, 90 S.C. 319,73 S.E. 354, show that the exception raising this question cannot be sustained.

The next question for consideration is, whether there was error, on the part of his Honor, the Circuit Judge, in ruling that the contract herein relative to the pardon of Lethia Hemphill, was not against public policy.

The rule is thus clearly stated in 2 Ruling Case Law, section 124:

"Generally speaking, all contracts to change the course of trials, or the effects of trials, whether to obtain the liberation of a prisoner, by money to the jailer, or to obtain a pardon by the use of money directly or indirectly, must be deemed void. While it has been held, that a contract founded upon a promise or engagement, to procure signatures and obtain a pardon from the Governor, for one convicted of a criminal offense and sentenced to punishment, is unlawful and cannot be enforced by action, yet there is nothing unlawful or opposed to public policy, as a general rule, in simply employing a person to endeavor, by proper means, to secure a pardon; and from the mere fact of an attorney at law, being employed to solicit the pardon of a convict, and if successful to be paid a stipulated sum for his services, it is not to be legally inferred that an unlawful course of conduct was intended."

The testimony sustains the ruling of the Circuit Judge, and the exception presenting this question is overruled.

The next question to be determined is, whether W.H. Newbold, Esq., was guilty of the fraud, misrepresentation and deceit alleged in the answer of the defendant.

On hearing the appeal herein, this Court remanded the case to the Circuit Court, with direction to submit the following issues to a jury:

First. "Did the defendant execute the mortgage in question?

Second. If so, was he induced to execute the mortgage through fraud, misrepresentation or deceit of W.H. Newbold?"

The answer of the jury to the first question was, "Yes," and to the second question, "No."

These issues arose in an equity case, and were submitted to the jury, for the mere purpose of enlightening the conscience of this Court. Therefore, we are at liberty to determine the facts, contrary to the findings made by the jury.Hammond v. Foreman, 43 S.C. 264, 21 S.E. 3; MortgageCo. v. Gilliam, 49 S.C. 355, 26 S.E. 990, 29 S.E. 203;Windham v. Howell, 78 S.C. 187, 59 S.E. 852.

This Court, however, is satisfied with the findings of the jury, and adopts them as the correct solution of the questions, submitted to it.

The exceptions raising these questions are overruled.

The next assignment of error relates to the ruling of the Circuit Judge as to the amount of fees.

This question has given the Court much concern, but after most careful consideration, we have reached the conclusion, that the amount charged was excessive, and that the sum of five hundred dollars, less the payment of one hundred dollars made by the defendant in January, 1913, and less attorney's fees for foreclosing the mortgage, would be a reasonable compensation for the professional services rendered by W.H. Newbold, Esq. Matheson v. Rogers,84 S.C. 458, 65 S.E. 1054, 67 S.E. 476; Coley v. Coley,94 S.C. 383, 77 S.E. 49.

It is the judgment of this Court that the judgment of the Circuit Court be modified in regard to the amount of the fee, and that in all other respects it be affirmed.

A petition for rehearing having been filed March 24, 1916, the following order was made