Campbell v. Cnty. of Charleston (In re Williams)

• Decision Date: 09 March 1876
• Citation: 7 S.C. 71
• Court: South Carolina Supreme Court
• Parties: Ex parte WILLIAMS, in re CAMPBELL v. COUNTY OF CHARLESTON.

7 S.C. 71

Ex parte WILLIAMS, in re CAMPBELL

v.COUNTY OF CHARLESTON.

Supreme Court of South Carolina.

Mar. 9, 1876.

A verdict obtained by a plaintiff in a regular course of proceeding cannot be vacated and set aside by the Circuit Judge upon an ex parte application and without notice to the plaintiff.

An order of the Circuit Court setting aside a verdict for the plaintiff without notice to him is appealable, and no motion need be made in the Circuit Court to set aside the order.

BEFORE REED, J., AT CHARLESTON, APRIL, 1875.

F. Campbell brought an action by summons and complaint against the County of Charleston to recover the sum of $7,594.96, alleged to be due by the defendant to the plaintiff, on certain claims which he held against the County. C. W. Buttz, Esq., Solicitor of the First Circuit, appeared for the defendant and filed an answer on its behalf. The case was placed on Docket No. 1, and during the present term of the Court it came on for trial. A verdict was rendered for the plaintiff and entered by the Clerk on the minutes.

A number of other cases, by other plaintiffs, against the same defendant, in which the proceedings were the same, except that in some the service of the summons and complaint was made upon the County Commissioners, were heard at the same time and verdicts found for the plaintiffs.

The verdicts were rendered on the 25th of February, and on the 9th of April G. W. Williams & Co., Alva Gage and six other persons and firms filed a petition to the Court, in which they stated:

“That they are citizens of the County of Charleston aforesaid, and are the owners and holders of property, both real and personal, therein.

That the said property so owned and holden by them is liable to be taxed for the payment of all judgments and other just claims against the said County.

That at the February Term, A. D. 1875, of the said Court, to wit, on or about the day of February, in the said term, verdicts were rendered against the said County, in all about , the sums recovered thereon amounting in the aggregate to the sum of , a list of which verdicts is hereto appended.

That your petitioners are informed and believe that the said verdicts were irregularly and improperly recovered against the said County, because:

1. The complaints, in many of the cases in which verdicts were recovered as aforesaid, are wholly insufficient and irregular, inasmuch as they allege and aver that the said County is indebted to the plaintiff in a certain sum, without setting forth nature and consideration of said indebtedness, nor that the claims so sued on have been presented to and audited by the Board of County Commissioners in the manner provided by law.

2. That the summons and complaint in said cases were none of them personally served upon the Board of County Commissioners, but in some few cases were served upon the Chairman of the Board alone, and in the great majority of said cases the Board of County Commissioners had no notice whatever that such claims were in action until after said verdicts were recovered, and could, therefore, take no steps to contest the same.

3. That one C. W. Buttz, assuming to act as the attorney of the Board of County Commissioners, did, in the majority of said cases, accept service thereof for the said Board, and did afterwards allow verdicts to be recovered therein, without contest, against the said County and without the knowledge and consent of the said Board of County Commissioners; but that the said C. W. Buttz was not the attorney of the said Board of County Commissioners, and assumed so to act without their authority or consent, and that all his actings in such capacity are null and void and of no force and effect to bind the said County.

4. That in many of said cases no answers were filed by said C. W. Buttz; and in such cases as answers were put in by him denying the liability of the County and the right of the plaintiffs to recover therein, such answers were withdrawn by the said C. W. Buttz at the trial and verdicts were allowed to be taken therein against the County without the knowledge, assent or authority of the said Board of County Commissioners.

5. That in many cases in which verdicts were recovered as aforesaid, no vouchers or other proof of said claims sued on were filed with the complaints or given in evidence.

6. That many of such claims as were produced in evidence or filed with the complaints in said cases have never been audited, allowed or approved by the said Board of County Commissioners.

7. That interest was claimed and recovered in said verdicts upon amounts which had never been examined, approved or allowed by the said Board of County Commissioners.

8. That, as your petitioners are informed and believe, many of the claims upon which verdicts have been rendered, as aforesaid, against the County are fraudulent, illegal, null and void, and that the same can be shown and proven if only opportunity is afforded for their careful examination.

And these petitioners further show unto your Honor that the said verdicts, as they are advised and believe, have been recovered through the ‘mistake, inadvertence, surprise or excusable neglect’ of the Board of County Commissioners in not properly defending the same, or through the improper and unwarrantable conduct of the said C. W. Buttz in assuming to act as the attorney of the said Board without authority as aforesaid, to the manifest injury and damage of your petitioners.

And your petitioners further show unto your Honor that they are advised and believe that the said County cannot be bound by the neglect and inadvertence of the said Board of County Commissioners, or by the unwarranted and unauthorized acts of the said C. W. Buttz as aforesaid, to the great injury of the citizens of said County.

Wherefore your petitioners pray unto your Honor to set aside the verdicts so recorded, as aforesaid, against the County, and to grant new trials in the said cases, and to grant leave to the Board of County Commissioners to put in proper answers to the complaints in the said cases, and to defend the same.”

The Board of County Commissioners adopted a resolution to concur in the foregoing petition and in the application to the Court to set aside the verdicts and grant new trials, and two of them-W. Bell Smith and Stephen Brown-made an affidavit, in which they declared, in effect, that Mr. Buttz had no authority to appear for or represent the County in the cases referred to in the petition, and that many of the claims sued on, wherein verdicts have been recovered, are fraudulent and void, and that they have a valid and sufficient defense thereto.

On the same day the petition was filed Mr. Buttz addressed a letter to His Honor the Circuit Judge as follows:

“In answer to the...