Ex parte Holman
| Decision Date | 16 March 1914 |
| Docket Number | 8747. |
| Citation | 81 S.E. 518,98 S.C. 97 |
| Parties | EX PARTE HOLMAN. v. COLEY. COLEY |
| Court | South Carolina Supreme Court |
On Petition for Rehearing.
Appeal from Common Pleas Circuit Court of Charleston County; J. W Bowman, Judge.
"To be officially reported."
Action by Eliza Coley against J. M. Coley. Heard upon the ex parte petition of W. A. Holman. From an order directing payment to petitioner of a certain amount out of the proceeds of a resale of property, defendant appeals. Modified.
Logan & Grace, of Charleston, for appellant.
R. C Holman, of Barnwell, for respondent.
This proceeding is a sequel to Coley v. Coley, reported in 94 S.C 383, 77 S.E. 49, wherein some issues were decided by Judge Sease and some issues were decided by Judge Memminger. The sale of defendant's property, therein referred to as having been ordered, was made; and the plaintiff and his wife, Eliza, bid off the property so sold at $12,300. Thereout was to be deducted a mortgage debt thereon and certain costs and fees. Then, out of the net balance, Eliza was to have the one-third theretofore adjudged by the court to be due to her.
Had the purchaser at that sale complied with the bid, and paid into the court $12,300, this issue would not have been made. But at the sale Eliza was the bidder, and she did not comply, and the court ordered a resale thereof at her risk, and the sale has not yet been had. It is plain therefore that Eliza cannot now, before the resale, demand that any certain part of the proceeds which may be paid in, after a sale yet to be had, shall be paid to her, say $1,000. And for the manifest reason that the portion of the fund to which Eliza may be entitled may be reduced by charging against it any loss which may come out of the resale; because she has been adjudged liable for such loss.
If therefore Eliza cannot now demand such payment, neither can she assign to another the right to demand it. But that is the petitioner's case, he holds only an assignment from Eliza; and, like her, he must wait and see what shall be in the pot for Eliza at the wind up, before he can take out anything.
In our opinion the order must be modified, so that it shall provide for the payment to the petitioner of $1,000 if so much there be out of the amount which shall come to Mrs. Coley after the resale has been had pursuant to the decree of the circuit court which directed a resale. The payment of costs and fees had...
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