Ex parte Miller

• Decision Date: 04 December 1939
• Docket Number: 14972.
• Parties: Ex parte MILLER et al., State Board of Bank Control. CLAFFY v. MECHANICS, BUILDING & LOAN ASS'N OF SPARTANBURG. et al.
• Court: South Carolina Supreme Court

5 S.E.2d 865

192 S.C. 164

Ex parte MILLER et al., State Board of Bank Control.

CLAFFY v. MECHANICS, BUILDING & LOAN ASS'N OF SPARTANBURG. et al.

No. 14972.

Supreme Court of South Carolina

December 4, 1939

Perrin & Tinsley and Horace L. Bomar, Jr., all of Spartanburg for defendants-appellants.

DePass & DePass, of Spartanburg, for plaintiffs-appellants.

S R. Watt and C. E. Daniel, both of Spartanburg, for respondents.

BAKER Justice.

Sufficient of the history of this litigation is set forth in the opinion of this Court (Ex parte E. P. Miller et al., In re Bertha R Claffy et al. v. Mechanics Building & Loan Association 191 S.C. 260, 1 S.E.2d 512) as to make it unnecessary to now cover any period of the time from the inception of the litigation to the rendition and filing of the opinion supra on March 3, 1939.

Subsequent to the filing of said opinion, and after the remittitur had been handed down, attorneys for the receivers of the Building & Loan Association served upon attorneys for the State Board of Bank Control a notice that they would appear before the Clerk of Court of Common Pleas for Spartanburg County to tax the costs and disbursements of the previous litigation against E. A. Wayne, conservator, and E. P. Miller, et al., as members of the Board of Bank Control. A like notice was also served by attorneys for Mrs. Claffy, et al. In each instance the items of cost and disbursement were itemized. At the appropriate time, attorneys for the Board of Bank Control objected to the proposed taxation of costs against the Board and the conservator; and also questioned all items of costs on the part of Mrs. Claffy except the sum of $5, part payment of stenographer's costs for transcript of record.

We here set out the itemized statement of costs and disbursements:

The Receiver:

Clerk of Court's costs ................................................ $ 14.75

Service costs .......................................................... 9.10

For argument in Supreme Court .......................................... 25.00

Printing transcript of record .......................................... 239.00

Printing defendant"appellants' brief ................................... 61.50

Docketing case in Supreme Court ........................................ 4.50

For serving case with exceptions ....................................... 10.00

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Total ............................................................. $367.85

Mrs. Claffy:

Part payment of stenographer's cost for transcript of record (advanced

by H. E. DePass, Jr.) ................................................ 5.00

Service costs (W. H. Thompson, deputy sheriff, Columbia) ............... 1.50

For argument in Supreme Court .......................................... 25.00

Printing appellants' brief ............................................. 83.25

Printing appellants' reply brief ....................................... 28.50

Obtaining injunction and order of supersedeas ........................... 5.00

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Total ............................................................. $148.25

The Clerk of Court allowed the taxation of costs as proposed with the exception of an item of $5 on the part of Mrs. Claffy for obtaining injunction and order of supersedeas.

In due time, attorneys for the Board of Bank Control and E. A. Wayne, conservator, served notice and grounds of appeal to the Court of Common Pleas from the order of the Clerk taxing costs. "At the same time, said attorneys served notice that they would appear before Judge Grimball at Newberry, S. C., on April 24, 1939, for the purpose of reviewing the Clerk's Order of Taxation, and to seek an order (1) approving the accounts and vouchers of the conservator and discharging the conservator; (2) directing the receivers to pay the State Board of Bank Control the cost of maintaining a conservator's agent from August through October, 1938; (3) determining and fixing a fee for attorneys for the Board of Bank Control and its conservator for their services rendered in this proceeding and 'in the proceeding in the original jurisdiction' of the Supreme Court; (4) directing that the State Board of Bank Control be reimbursed for printing the case and argument in the original jurisdiction proceeding against Judge Sease, and the argument in the appeal from Judge Grimball's order of October 24, 1938."

By an order dated April 29, 1939 (the order from which this appeal is taken), Judge Grimball approved the itemization of costs allowed by the Clerk, but held that "all of the costs of this litigation necessary to the progress of the cause up to the present time shall be paid by the receivers of the Mechanics Building & Loan Association out of the assets of said Association". There is no appeal from that portion of the order approving the items of the costs allowed the appellants by the Clerk of Court. Included in the costs allowed respondents by Judge Grimball is the cost of the proceeding brought by respondents against Judge Sease in the original jurisdiction of this Court. It was further ordered that a fee of twelve hundred ($1200) dollars be paid from the assets of the Association to the attorneys for the State Board of Bank Control and E. A. Wayne, as conservator, for their services in the previous litigation. It was further ordered that the amount of the costs and expenses necessarily incurred by the State Board of Bank Control, the receivers being adjudged liable therefor, be referred to the Master for Spartanburg County, including the costs and expenses of the conservator, for his determination.

It should here be noted that Judge Sease's order of June 4, 1938, appointing receivers for the Mechanics Building & Loan Association provides that all creditors are called into the receivership action and directed to file their claims with the Master for Spartanburg County, to whom the case was referred for the purpose of taking testimony and reporting his findings upon all issues arising upon any question made as to claims filed; that on March 31, 1939, (practically a month prior to the order of Judge Grimball) another order was made by Judge Sease containing the following:

"Ordered that a reference be held before Honorable LeRoy Moore, Master for Spartanburg County, on the 6th day of June, 1939, and on such other dates as the Master may fix by adjournment, continuance or otherwise, at which time all claimants and creditors, including stockholders, shall prove their claims as to the amounts due thereon and all priorities, if any, shall be determined.

"It is further ordered that the Master shall advertise in the Spartanburg Herald, Spartanburg, S. C., once a week for six weeks, giving notice to all claimants and creditors, including stockholders, of the Mechanics Building and Loan Association to file their claims with him, duly itemized and verified, on or before the 6th day of June, 1939, and that failure to file proof of such claim or lien on or before said date shall be a perpetual bar against such claim or action of such creditor or claimant against the assets of the Mechanics Building and Loan Association."

The statement of issues presented by the exceptions of the receivers of Mechanics Building & Loan Association, and of Mrs. Bertha R. Claffy, et al., are, respectively, as follows:

"(1) Was it error for the Circuit Judge to order that the costs and disbursements of the previous litigation in this case be paid by the Receivers of the Mechanics Building & Loan Association?

"(2) Was it error for the Circuit Judge to order that a fee of $1,200.00 be paid to Attorneys for the State Board of Bank Control and their Conservator from the assets of the Mechanics Building & Loan Association?

"(3) Was it error for the Circuit Judge to provide that the Receivers should be liable for the expenses of the Conservator during the period that he illegally held the assets of the Association, and refer to the Master the question of the amount of said expenses, and thereby fail to hold that none of the costs and expenses incurred by the Conservator might be charged to the Association?"

"In addition to the statement of issues made by the Receivers of Mechanics Building & Loan Association, ***:

"(1) Should the costs of a test case brought for the purpose of testing and defining the powers of a government agency be charged against one building and loan association?

"(2) Should the costs and attorneys' fees of litigation expressly against and in derogation of an order of the Circuit Court be charged against a building and loan association where such litigation is defeated?"

We will pass upon the issues as stated by the receivers in the order above set out.

The Court costs of the State Board of Bank Control decreed to be reimbursed by the receivers of the Association appear to be for disbursements and expenditures in printing the case in the original jurisdiction of this Court against Honorable Thos. S. Sease, Judge, and the argument therein and the printing of the argument in the case titled as this one, and reported in 191 S.C. 260, 1 S.E.2d 512. In other words, all Court costs claimed by the Board are Supreme Court costs.

Section 756 of the Code of Civil Procedure, 1932, reads as follows:

"In every civil action commenced or prosecuted in the courts of record in this State (except cases in chancery) the attorneys of plaintiff or defendant shall be entitled to recover costs and disbursements of the adverse party, as prescribed in sections 757, 758, and chapter 117, such costs to be allowed as of course to the attorneys of plaintiff or defendant, and all officers of the court thereto entitled, accordingly as the action may terminate, and to be inserted in the judgment against...