Furman v. Greenville & Columbia Railroad ( 1872 )

The opinion of the Court was delivered by

Willard, A. J.

The above entitled cases were discontinued under an order of the Circuit Court of the Fifth Circuit, made by Judge Boozer, August 17, 1869, in which a final disposition of all questions of costs was made.

On the 6th of March, 1871, a motion was made in the First Circuit in behalf of C. M. Furman, trustee, complainant in the suit first above named, for a taxation of his costs as against the Greenville and Columbia Railroad Company, and as between himself and his attorney, and for such allowance as he might be entitled to, and for the appointment of a special Referee to tax and assess the same. The motion was denied by an order made by Judge Graham on the 4th of April, 1871. This decision of Judge Graham is based on the ground that the order of Judge Boozer was final as affecting the application before him.

The present appeal is from the order last mentioned, and advances the proposition that the order of Judge Boozer should have been disregarded as null and void, or, that it should have been set aside as irregular, unfairly taken, without notice, without consent, and without jurisdiction.

No ground whatever is presented, by the case before us, for holding that Judge Boozer’s order was null and void. It professes to be based on the consent of the solicitors in the case of Furman vs. The Greenville and Columbia Railroad Company.

If such consent was actually given, it bound the present appellant.

It was claimed, however, that no such consent had, in point of fact, been given. If such was the case, the course of the party was, in due time, to move the Circuit Court, where the order was made, to correct any misapprehension of the facts that may have misled the Court in making the order. It was not correct practice to ask the Circuit Court of a different Circuit from that which made the order, either to disregard it or to set it aside for irregularity, nor to bring the order, by appeal, into this Court, without making it the subject of consideration by the Court that passed it.

The conclusions of Judge Graham are unobjectionable upon the state of facts brought before us.

The order should be affirmed, and the appeal dismissed.

Moses, C. J., and Wright, A. J., concurred.