Connor v. Ashley

• Decision Date: 30 June 1897
• Citation: 49 S.C. 478,27 S.E. 473
• Parties: CONNOR v. ASHLEY et al.
• Court: South Carolina Supreme Court

27 S.E. 473

49 S.C. 478

CONNOR

v.ASHLEY et al.

Supreme Court of South Carolina.

June 30, 1897.

Equity—Fraud—Annulling Satisfaction of Judgment.

A complaint alleged that plaintiff, as attorney, prosecuted an action, and recovered judgment, for two of the defendants, against defendant executor, who was adjudged to pay the amount thereof for the other defendants to the master, who was directed to pay therefrom to plaintiff $500, as his fee; that defendants colluded together, and made a settlement, whereby defendant executor was discharged from liability; and that he did not pay the money to the master; and that plaintiff had not received his fee. The complaint prayed for judgment for $500. Held that, though the allegations did not entitle plaintiff to the relief asked, the complaint was not demurrable, since, if defendant brought about the satisfaction of the judgment by collusion to prevent payment of his fee, such allegation of fraud gave the court equitable jurisdiction to declare the satisfaction a nullity.

Appeal from common pleas circuit court of Barnwell county; Joseph H. Earle, Judge.

Action by A. B. Connor against Mary M. Ashley, Harriet Ashley, and W. A. Holman, executor of William Ashley, deceased. From orders sustaining a demurrer of the executor to the complaint, and overruling a demurrer of the other defendants, plaintiff and defendants appeal. Affirmed as to the order overruling the demurrer, and reversed as to the order sustaining the demurrer.

Patterson & Holman, for appellants.

I. L. Tobin, for respondents.

GARY, J. When this case was called for hearing in the circuit court, the defendants, M. M. Ashley, H. I. Ashley, and W. A. Holman, demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The presiding Judge sustained the demurrer as to W. A. Holman, and dismissed the complaint as to him, but overruled the demurrer as to the defendants M. M. Ashley and H. I. Ashley. Both the plaintiff and the defendants have appealed from orders of the circuit judge, and, by consent, the appeals were heard together. The complaint is as follows: "The plaintiff, complaining of the above-named defendants, alleges: (1) That the plaintiff was at the time hereinafter mentioned, and still is, an attorney and counselor at law, duly licensed and authorized to practice in the courts of this state. (2) That William Ashley died in the year 1879, leaving of force his last will and testament, which was duly admitted to probate in the probate court for said county; and the defendant W. A. Holman duly qualified as an executor of said will, and was at the times hereinafter mentioned, and still is, an executor. (3) That in the year 1885 this plaintiff was retained as an attorney and counselor at law, to bring, and did bring, as such attorney, an action on behalf of the defendants Mary M. Ashley and H. Irene Ashley, who were then infants, against the defendant William A. Holman, as executor, as aforesaid, in this court, and recovered a judgment in this action in favor of said Mary M. Ashley and H. Irene Ashley, against said William A. Holman, as executor...