Fagan v. Timmons, 16797

• Decision Date: 10 November 1953
• Docket Number: No. 16797,16797
• Citation: 78 S.E.2d 628,224 S.C. 286
• Court: South Carolina Supreme Court
• Parties: FAGAN v. TIMMONS.

Page 628

78 S.E.2d 628

224 S.C. 286

FAGAN v. TIMMONS.

No. 16797.

Supreme Court of South Carolina.

Nov. 10, 1953.

A. M. Timmons, in pro. per.

John S. Nicholson, Nelson, Mullins & Grier, Columbia, for respondent.

TAYLOR, Justice.

This appeal arises out of an Order of the Honorable J. Woodrow Lewis, presiding Judge of the Fifth Judicial Circuit, wherein appellant was adjudged guilty of contempt for failing to comply with an Order previously issued by the Honorable G. Duncan Bellinger, resident Judge of that Circuit.

The citation arose out of the case of Fagan v. Timmons which has had a somewhat extended career in the Courts. See Fagan v. Timmons, 215 S.C. 116, 54 S.E.2d 536, certiorari denied, Timmons v. Gagan, 338 U.S. 904, 70 S.Ct. 306, 94 L.Ed. 556, rehearing refused, 339 U.S. 992, 70 S.Ct. 1018, 94 L.Ed. 1392; Fagan v. Timmons, 217 S.C. 432, 60 S.E.2d 863.

Appellant in her brief asks for a reversal on the grounds; First, that appellant was not guilty of contempt of court under the facts and circumstances; second, that the failure of the receiver to promptly qualify and diligently enter upon the duties deprived him of the powers and duties of that office.

It is the general rule on appeal from a judgment of contempt that the appeals Court will not disturb the findings of the trial Court where such matters are within its jurisdiction unless there has been an abuse of discretion. 2 Am.Jur. 920. However, such power should be used sparingly and with caution having at all time due regard for one's constitutional rights; it should be exercised only when necessary to prevent actual or direct obstruction or interference with the administration of justice. Within these limitations, however, the matter of determining and dealing with contempts is within the Court's sound discretion, subject to the absolute provisions of the law and its determination is final unless there is a plain abuse of discretion. See 17 C.J.S., Contempt, § 57.

On March 22, 1948, respondent obtained a judgment against appellant in the sum of $750. Execution was issued and a nulla bona return made thereon. A rule to show cause was issued by the Honorable G. Duncan Bellinger on January 21, 1950, requiring appellant to show cause, if any she could, why a receiver should not be appointed and why she should not be required to submit to an examination in supplementary proceedings. As a result of which Mr. Jesse T. Reese of Columbia was appointed receiver of the rents, issues, and profits accruing on and from the properties of appellant for the purpose of impounding such and requiring her to make available to the receiver her books and records pertaining to the rental accounts and a complete list of her properties and tenants thereof and to fully cooperate with the receiver in the performance of his duties. An appeal was taken from this Order to this Court which resulted in an affirmance. Fagan v. Timmons, 217 S.C. 432, 60 S.E.2d 863.

Appellant was thereafter required to appear before the Master in Equity for Richland County in supplementary proceedings and produce such books and records as were necessary to give full information relative to her properties, rentals, etc. After taking testimony, the Master recommended, among other things, that unless appellant turn over to the...