Salley v. Seaboard Air Line Ry.

Decision Date30 March 1908
Citation60 S.E. 1123,79 S.C. 454
PartiesSALLEY v. SEABOARD AIR LINE RY.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Richland County; Geo. E Prince, Judge.

Action by J. L. Salley against the Seaboard Air Line Railway. From an order as to costs, plaintiff appeals. Affirmed.

See 76 S.C. 173, 56 S.E. 782.

De Pass & De Pass and Jas. H. Fowles, Jr., for appellant.

Lyles & McMahan, for respondent.

WOODS J.

The issue on this appeal is an order of the circuit judge striking out of the taxation of costs the items $3 for proceedings before trial and $5 for trial, allowed plaintiff by clerk for the appeal from the magistrate's court. As the action was commenced after 12th January, 1893, and was not on a contract which was liquidated at that time, these items could not be allowed under section 3099 of Civil Code of 1902.

The fallacy of argument of counsel that they are authorized by section 373 of the Code of Civil Procedure of 1902 will be apparent from a short statement of the legislation on the subject. The argument rests on the theory that these items of cost are given by section 373 of Code of Procedure of 1902 to the successful litigant himself, and not to his attorney, and therefore they are not embraced in the statutes doing away with attorney's costs except in certain specified cases. The act of 1878 (16 St. at Large, p. 624), after setting forth in sections 2 and 3 costs to be allowed plaintiff's and defendant's attorneys, provides in section 4 "Appeals from trial justice courts for plaintiff or defendant: For all proceedings before trial, three dollars for trial of the cause, five dollars." It was no doubt on the authority of this statute that a change was made, and the same provision for costs was inserted in section 373 of Code of Civil Procedure of 1902. By the act of 1880 (17 St at Large, p. 296), section 4 of the act of 1878 was expressly repealed, and the items of costs on appeal from a magistrate's court, therein mentioned, were allowed in express terms to the attorneys.

Without tracing in detail the subsequent course of legislation on the subject of costs, it is sufficient to say that in substance the act of 1880 is still of force, but limited to cases of appeal to the Supreme Court and "in actions which were pending, or on existing contracts which were liquidated on the 12th day of January, 1893." Civ. Code 1902, §§ 3098, 3099. If these sections and ...

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