Bratton v. Massey , 18 S.C. 555 ( 1883 )

The opinion of the court was delivered by

Mr. Justice McIver.

The action in this case was brought by the plaintiff, as a creditor of one ~W. T. Gilmore, against the defendant, Massey, who claimed the land in question under a deed from said Gilmore, the other creditors of Gilmore and his heirs-at-law, for the purpose of subjecting certain real estate to the payment of the debts of Gilmore. The real contest was as to the true construction of the deed under which Massey claimed, and Judge Kershaw, who heard the case on its merits, held that the land was subject to the payment of Gilmore’s debts and ordered it sold for that purpose, the costs of the case to be paid out of the proceeds of the sale. From this decree Massey appealed, and the Supreme Court reversed the decree of J udge Kershaw and dismissed the complaint. Bratton v. Massey, 15 S. C. 277.

Subsequently the costs of the case were taxed by the clerk of the court, who held that they should be paid out of the proceeds of the sale, which had been made by consent, pending the appeal. This decision of the clerk was excepted to by Massey, substantially upon the ground that the clerk erred in deciding that the costs should be paid out of the proceeds of the sale, he contending that the costs should follow the event of the suit in the absence of any special provision to the contrary. Judge Cothran sustained the exceptions to the clerk’s decision and adjudged that the defendant Massey, as well as certain of the creditors of Gilmore, whose claims were alleged by plaintiff to have been paid of otherwise discharged, and the defendant Annie McLure, an infant, the only one of the heirs-at-law of Gilmore who answered the complaint, were entitled to tax their costs against the plaintiff; that the costs and other expenses incident to the sale of the land should be paid out of the proceeds of the sale, and that the costs of the appeal from the clerk’s* decision should be paid by the plaintiff.

From this judgment the plaintiff appeals upon various grounds which may be stated substantially as follows: First. Because the Circuit judge erred in holding that the decree of Judge Kershaw, so far as it related to costs, was reversed. Second. Because of error in holding that, in the absence of any special provision to the contrary, the costs followed the event of the suit. Third. Because costs were'adjudged against the plaintiff in favor of some of the defendants who concurred in the prayer of the complaint. Fourth. Because, under all the circumstances of the case, the costs should be paid out of the proceeds of the sale.

It is quite clear that the first ground cannot be sustained. The appeal was not from any particular portion of Judge Kershaw’s decree, but the appeal was from the decree — meaning, of course, the whole decree — and the judgment of the Supreme Court was “ that the judgment of the Circuit Court be reversed and that the complaint be dismissed.” This, of course, operated as a reversal of the whole decree. It is very true that in the former appeal that portion of the Circuit decree relating to costs was not specially attacked, but the provision as to costs was a mere incident to the judgment on the merits, and when that was ascertained to be erroneous and was reversed, and the complaint was dismissed, the provision, as to costs was likewise reversed and fell with the judgment on the merits.

The judgment of the Supreme Court not having made any provision as to costs, they would necessarily be governed by the general rule upon the subject. The inquiry then is, What was the rule upon the subject at the time this case was determined ? Prior to the adoption of the code of procedure the well settled rule was, that in cases of the class to which this belongs, in the absence of any special provision in the decree as to costs, they followed the event of the suit. Woodson v. Palmer, Bail. Eq. *95; Muse v. Peay, Dud. Eq. 236; Higginbottom v. Peyton, 4 Pick. Eq. 316; Brown v. Wood, 6 Id. 360. It is true that by section 332 of the code of procedure, as originally adopted, other provision was made as to costs, in cases like this, where the relief sought was such as, prior to the code, could only be obtained in a court of equity (Mars v. Conner, 9 S. C. 79), but that section of the code was repealed by the act of February 20th, 1880, (17 Stat. 303,) prior to the hearing of this case, and that act contains no provision upon the subject. Hence, at the time judgment was rendered in this case, there was no statute or rule of court prescribing which of the parties should pay costs in a case like this, and hence, under rule 71 (now known as rule 72) of the Circuit Court, “ the practice, as it has heretofore existed in the courts of law and equity of this State,” must govern. We do not see, therefore, how the second ground of appeal can be sustained.

As to the third ground, which questions the propriety of the decision of the Circuit judge as to the costs of certain of the defendants; and the fourth ground, which claims that, under all the circumstances of this case, the Circuit judge should have directed that the costs should be paid, out of the proceeds of the sale of the land, it is sufficient to remark that, under the practice governing at the time this case was heard, costs in an equity case were in the discretion of the Circuit judge, and, therefore, the manner in which that discretion has been exercised is not ordinarily a subject-matter of appeal. Singleton v. Allen, 2 Strobh. Eq. 174; Hext v. Walker, 5 Rich. Eq. 7; and we may add that we think, in this case, the Circuit judge has fully vindicated the propriety of his conclusions.

The judgment of this court is that the judgment of the Cir•cuit Court be affirmed.