Ex parte Hart

• Decision Date: 07 February 1938
• Docket Number: 14615.
• Parties: Ex parte HART et al. In re BOWEN et al.
• Court: South Carolina Supreme Court

195 S.E. 253

186 S.C. 125

Ex parte HART et al. In re BOWEN et al.

No. 14615.

Supreme Court of South Carolina

February 7, 1938

Appeal from Common Pleas Circuit Court of Greenville County; T. S Sease, Judge.

Proceeding by W. E. Bowen and Dakyns B. Stover, petitioners, who obtained orders authorizing payment of extra compensation to them as county attorneys. J. Ed. Hart, a citizen and taxpayer of Greenville county, on behalf of himself and all others similarly situated, and the Greenville County Bar Association, presented petition for rule to show cause why orders granting extra compensation should not be vacated, and for other relief. From a judgment vacating the previous orders, and orders striking the name of the Greenville Bar Association from the petition, and permitting Greenville county to intervene as a party defendant in the vacation proceedings, petitioners appeal.

Reversed.

Nicholls & Russell, of Spartanburg, Barron, Barron & Walker, of Union and C. S. Bowen, of Greenville, for appellants.

E. M Blythe, Sr., James L. Love, and Benj. A. Bolt, all of Greenville, for respondents.

Wilton H. Earle, of Greenville, for intervener.

FISHBURNE Justice.

On June 2, 1937, the appellants, W. E. Bowen and Dakyns B. Stover, county attorneys for the county of Greenville, which is embraced within the thirteenth judicial circuit, made an ex parte application to his honor, T. S. Sease, resident circuit judge of the adjoining seventh circuit, at his chambers in Spartanburg, for an order authorizing the payment of extra compensation to them as such attorneys, under section 33 of the Greenville County Supply Act (Acts 1937, page 1071). The petition presented to Judge Sease was accompanied by an affidavit of Mr. Bowen, setting forth that Hon. G. Dewey Oxner, the resident circuit judge of the thirteenth judicial circuit, was then absent from his circuit.

Upon this ex parte petition of the appellants, Judge Sease, after taking testimony offered in support of the allegations of the petition, and also upon the question of the reasonableness of the fee prayed for, passed an order authorizing the payment of $3,000 to each of the said petitioners. The order further provided "that said sum be forthwith paid to each of the petitioners by the Greenville County Supervisor, Board of County Commissioners and County Treasurer out of the contingent fund as provided in said Supply Act, in the same manner as salaries are paid to the public officials of the County upon the petitioners presenting their vouchers for same with a certified copy of this order attached." Later in the day of June 2d, the petitioners, upon their return to Greenville from Spartanburg, learned that Judge Oxner was actually in his circuit on that day. It appears that Judge Oxner, in accordance with plans previously made by him, had intended to be away from his circuit on June 2d; and upon inquiry, he had so advised the petitioners, but due to an unexpected change in his plans he did not leave the thirteenth circuit until early in the morning of June 3d. The petitioners, therefore, appeared before Judge Sease at his chambers at Spartanburg again on the following day (June 3d), and presented an affidavit reciting the above facts, and the further fact that Judge Oxner was absent that day from the thirteenth circuit, and that there was no other circuit judge presiding therein. Upon consideration of these facts, and without taking further testimony, his honor, Judge Sease, then passed another order, bearing date June 3d, in which he specifically adopted and confirmed his order of June 2d, and declared it valid and of full force and effect. Both orders were duly filed in the county of Greenville, and thereafter the county paid the petitioners the fees therein provided for.

As stated, the petition presented to Judge Sease was ex parte. Neither the county of Greenville nor any person or board representing the county was made a party thereto.

On June 11, 1937, J. Ed. Hart, a citizen and taxpayer of Greenville county, on behalf of himself and all others similarly situated, and the Greenville County Bar Association, copetitioners (which association joined in the petition in accordance with a resolution passed by it, whose members, as shown by the petition, are likewise taxpayers of Greenville county), presented their verified petition to his honor, Judge Sease, at his chambers in Spartanburg, praying that a rule be issued by him requiring W. E. Bowen and Dakyns B. Stover, county attorneys for Greenville county, to show cause why the orders dated June 2, 1937, and June 3, 1937, should not be declared void, vacated, and set aside, and for such other and further relief as may be proper in the premises. This petition denied the jurisdiction of the court, upon the facts stated, to issue the aforesaid orders, and further challenged the validity of the orders upon the ground that they were granted in proceedings wholly ex parte, without notice to Greenville county. The reasonableness of the fees allowed was also questioned. Upon consideration of this petition a rule was issued by Judge Sease, returnable before him on June 17, 1937, at his chambers at Spartanburg, requiring and directing Messrs. Bowen and Stover to show cause why the said orders should not be vacated, and adjudged null and void, and why the petitioners should not be granted the relief prayed for in their petition. In accordance with the order, a copy of the rule and petition, with accompanying affidavits, were duly served upon these attorneys, and also upon the secretary of the Greenville county delegation, the chairman of the board of county commissioners of Greenville county, and on the treasurer of Greenville county, each of whom was given leave to file a return to the petition. No returns, however, were filed by any of these county officials, except a formal return by the treasurer, which merely stated that he had paid out the money pursuant to the orders referred to.

Messrs. Bowen and Stover, appellants here, filed their return, setting up several defenses.

At the hearing before Judge Sease on June 17th, counsel for the appellants objected to the jurisdiction of the court, on the ground that it did not appear by affidavit, either at the time of the issuing of the rule, on June 11, 1937, or at the date of the hearing, on June 17, 1937, that the resident judge of the thirteenth judicial circuit (embracing Greenville county) was out of the circuit, and that there was no special or regular judge presiding therein.

The record on appeal shows that "no affidavit was presented or filed by petitioners on June 11, 1937, when the rule to show cause was issued, or on June 17, 1937, when the hearing on the Rule to show cause and Petition was had, or at any other time, showing that the resident Judge of the thirteenth circuit was out of the circuit at either of said times, or that there was no other presiding circuit Judge therein, and no effort was made by petitioners to comply with the statutory provision so as to give Judge Sease jurisdiction."

The record likewise discloses that separate actions were commenced on July 9, 1937, by Greenville county against the appellants in the court of common pleas for Greenville county, alleging fraud and deceit in obtaining payment of the aforementioned fees, and demanding judgment thereabout. These actions are now pending.

The objection raised by the appellants to the jurisdiction of the...