Ex parte Andrews

• Decision Date: 15 November 1929
• Docket Number: 12764.
• Citation: 150 S.E. 313,152 S.C. 325
• Parties: Ex parte ANDREWS. NICHOLS v. ANDREWS et al. CAMP FORNANCE DEVELOPMENT CO. v. PALMETTO BUILDING & LOAN ASSN.
• Court: South Carolina Supreme Court

150 S.E. 313

152 S.C. 325

Ex parte ANDREWS. NICHOLS v. ANDREWS et al.

CAMP FORNANCE DEVELOPMENT CO. v. PALMETTO BUILDING & LOAN ASSN.

No. 12764.

Supreme Court of South Carolina

November 15, 1929

Appeal from Richland County Court; W. H. Townsend, Judge.

Action by Clarence O. Nichols and others against Ida L. Andrews and others. Decree for plaintiffs. On rule to show cause why the sheriff of Richland county should not be restrained from dispossessing defendant named of premises ordered sold under foreclosure decree during pendency of appeal. Rule discharged.

Andrew J. Bethea, of Columbia, for appellant.

H. F Jennings, A. W. Holman, and D. T. Faulkenberry, all of Columbia, for respondent.

BLEASE J.

The plaintiff, Nichols, and others, instituted actions for foreclosure of real estate mortgages against Mrs. Andrews the mortgagor, and others, in the court of common pleas for Richland county. There was a decree in favor of the plaintiff, Nichols, for the foreclosure he sought and sale of the mortgaged premises. The mortgagor appealed to this court, and filed undertaking to stay the sale of said premises. We reversed the judgment below, with directions. See Nichols v. Andrews, 149 S.C. 1, 146 S.E. 610.

The cause proceeded to hearing in the lower court, and resulted again in a decree of foreclosure and sale of the premises. The mortgagor, Mrs. Andrews, again appealed to this court. Before the day fixed for the sale of the property, the appellant sought an order staying the sale pending her last appeal, under the provisions of section 653 of the Code of Civil Procedure (vol. 1, Code 1922). His honor, Circuit Judge Townsend, who heard the cause, fixed the amount of the undertaking to be executed by the appellant, as provided for in the section to which reference has been made. But the appellant did not execute and file the required undertaking.

Pursuant to the terms of the court's decree, the mortgaged premises were sold by the master at public outcry. Following that sale, the master executed and delivered to the successful bidder's assignee, the plaintiff Nichols, who had complied with the terms of sale, proper deed to the premises sold.

The appellant, who had been continuously in possession of the premises during the litigation, refused to surrender the same to Nichols, grantee in the master's deed. Upon proper petition, Judge Townsend directed the issuance of a writ of assistance, requiring the sheriff to put Nichols in the possession of the premises.

Upon the ex parte application of the appellant, the Chief Justice on October 28, 1929, passed an order requiring the respondent, Nichols, to appear before this court on November 11, 1929, and show cause, if any he had, why the sheriff of Richland county should not be restrained from dispossessing the appellant of the premises involved during the pendency of the appeal to this court; and the said order also restrained the sheriff from proceeding in the meantime to execute the writ of assistance.

The respondent, by his counsel, made return to the rule to show cause. That return, and appellant's petition, show the facts pertinent to the questions raised passed on herein, to be as we have heretofore related.

It is our opinion, and we so hold, that the undertaking executed and...