Dilling, Baker & Co. v. Foster
| Decision Date | 27 June 1884 |
| Citation | 21 S.C. 334 |
| Parties | DILLING, BAKER & CO. v. FOSTER. |
| Court | South Carolina Supreme Court |
1. Copy-order to appear before referee served upon defendant in supplementary proceedings had not the seal of court to the clerk's certificate. Held , that this furnished no ground for dismissing the proceedings, nor, after appearance and examination, could defendant object to the service.
2. Levy upon goods was released by plaintiff because the goods had been previously mortgaged and the condition of the mortgage was broken. Held , that the levy was properly disposed of, and therefore the execution was not satisfied.
3. On the hearing of the referee's report in supplementary proceedings, the judge may appoint a receiver, without specific notice having been given that such appointment would then be applied for.
4. A receiver having been appointed in supplementary proceedings this court will assume, in the absence of all testimony upon the point, that the Circuit judge did his duty and ascertained that no other supplementary proceedings were then pending against this defendant.
5. The examination in supplementary proceedings having disclosed sufficient property in the debtor's hands, subject to levy and sale, to satisfy the judgment, a receiver might nevertheless, under the present practice, be appointed; and when appointed, he should be the receiver of all the defendant's property.
6. It is the usual and better practice to require bonds from such receivers, but it is not essential.
7. Section 321 of the code does not authorize a fee to plaintiff's attorney, and the " fixed sum as costs" therein provided for must be fixed by the judge and not by the clerk of court.
8. Taxation of costs can be corrected only by motion, but an order of the judge directing an erroneous taxation, and a taxation thereunder, may be brought up by exception, and the error corrected.
9. The mortgagee of the judgment debtor was not a necessary party to the proceedings, as the order did not interfere with the mortgaged property.
10. After paying the debts, the receiver should return to the debtor all property remaining in his hands, but it was not error of law to omit such a direction from the order appointing the receiver.
11. A receiver should not be authorized to sell choses in action unless they represent " desperate debts." Rule 70 of the Circuit Court .
Before WALLACE, J., Spartanburg, December, 1883.
The opinion fully states the case.
Mr. J. S. R. Thomson , for appellant.
Messrs. Carson & Bomar , contra.
On July 7, 1883, the plaintiffs obtained judgment against the defendant for the sum, including costs, of $86.75, and issued execution therefor. The sheriff, on July 16, 1883, endorsed upon this execution a levy " upon a lot of merchandise, & c., a list of which is attached within." By written endorsement on the execution the plaintiffs' attorneys released this levy upon the ground that the property was claimed by another person, and then the sheriff, on July 20, 1883, made a return of nulla bona upon the execution.
Upon the usual affidavit, Judge Wallace, at chambers, made an order requiring the defendant to appear before a referee named, on July 25, 1883, or on such other days as he might appoint, to be examined touching his property, and directed the referee to report the testimony and his conclusions of fact. He also directed a copy of the order to be served on the defendant, and that in the meantime, and until the further order of the judge in the premises, that the defendant be enjoined from disposing of his property. The copy of this order served upon the defendant was not certified under the seal of the court. At a reference held on August 2, 1883, the defendant made a motion to dismiss the proceedings, because of the want of the seal to the copy of the order served upon the defendant. The motion was refused, and the examination of the defendant was taken at length, all of which is set out in the " Case."
The facts as reported by the referee, so far as the questions involved in this case are concerned, are substantially as follows: That the stock of goods, wares, and merchandise, to the estimated value of about $600, which had been levied upon by the sheriff, and the levy subsequently released, were covered by a mortgage to one Dreyer, dated February 8, 1883, given to secure a note for $500, payable February 9, 1883; that the merchandise levied upon, after it was released from the levy, was not returned directly to the defendant, but was taken charge of by the mortgagee Dreyer, who placed the defendant in charge of it to sell as his agent; that the goods levied upon were nearly sufficient to pay off both Dreyer's mortgage and the judgment in favor of the plaintiffs; that the defendant was the owner and in possession of property, consisting of choses in action to the amount of $917, a considerable portion of which would not be due until November 1, 1883, and a portion not due for two years, and other personal property of the estimated value of $112, besides a crop of growing cotton, twenty-five acres, the value of which was not estimated.
On hearing the report of the referee, the judge ordered that a receiver be appointed of all the property of the defendant set forth in the report, " with power and authority to sell the same, including the proceeds of the crop above named, or so much thereof as may be necessary to satisfy the judgment in the above stated case, with interest thereon, and all the costs and disbursements of this action; *** that the receiver above named have leave to bring action for the recovery of property of the defendant in execution in the hands of any other person; *** that the defendant, W. C. Foster, deliver and turn over all of the said property to the said receiver immediately upon the service of this order, and that from the proceeds of said sale the said receiver shall pay all the costs of this action, including the costs of proceedings supplementary to judgment and dollars fee for attorneys of plaintiffs, to be taxed by the clerk of court, together with the judgment and interest thereon and disbursements." After this order the clerk, without holding any reference or taking any testimony, made a taxation of costs, in which, amongst other items, was the following: " Judgment-creditor, under section 321 of code (fixed sum), $15.00."
The defendant appeals upon sixteen grounds set out in the record, but which need not be repeated here, as several of them involve the same questions. We will therefore proceed to consider the various questions which we understand to be raised by the grounds of appeal.
The first is whether there was error in refusing to dismiss the proceedings upon the ground that the copy of the order requiring the defendant to appear before the referee and answer touching his property had no seal to the clerk's certificate. It is very clear that this defect in the copy served furnished no ground for dismissing the proceedings. It could, at most, only avail the defendant on a motion to set aside the service of the order as not a true copy of the original, or as not duly authenticated, so as to require a new service. But as the defendant appeared and was fully examined, and as the object of the service was to give the defendant notice, it is now too late to make even that objection.
The second, eighth, and ninth grounds are based upon the proposition that the execution was satisfied by the levy on the stock of goods. It is quite true that a levy is prima facie satisfaction to the extent of the value of the property levied upon, but when it is shown that the levy has not produced...
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