First Nat. Bank v. Badham

• Decision Date: 23 February 1912
• Citation: 73 S.E. 778,90 S.C. 394
• Parties: FIRST NAT. BANK OF RICHMOND, IND., v. BADHAM.
• Court: South Carolina Supreme Court

73 S.E. 778

90 S.C. 394

FIRST NAT. BANK OF RICHMOND, IND., v. BADHAM.

Supreme Court of South Carolina

February 23, 1912

Appeal from Common Pleas Circuit Court of Richland County; R. E Copes, Judge.

Action by First National Bank of Richmond, Ind., against V. C Badham. From an order of the Court of Common Pleas for Richland County, setting aside in part a judgment for plaintiff against defendant for the costs of an appeal to the Supreme Court, plaintiff appeals. Reversed.

Lyles & Lyles, for appellant. D. W. Robinson, for respondent.

WATTS J.

This is an appeal from the order of the court of common pleas for Richland county, setting aside in part a judgment in favor of the plaintiff against the defendant for the costs of an appeal to the Supreme Court. The action was commenced some years ago upon two promissory notes, made by Samuel J Huffman of Richland county, S. C., and indorsed and delivered by him before maturity to the Richmond City Mill Works of Richmond, Ind., and upon its first trial resulted in a judgment for the defendant. The plaintiff appealed, and said judgment was reversed, and a new trial granted. Plaintiff gave notice of its costs, and a judgment for said costs was duly entered and recorded in the office of the said clerk of court of the court of common pleas for Richland county, with cross-references, as provided in rule 40 of the rules of the circuit court. Said judgment amounted to $344.40, and was entered on the 4th day of August, 1910, the judgment roll being on said day filed in the office of said clerk of court for said county, and the number of the roll is 9,642.

On the 12th day of December, 1910, the defendant served and filed a notice of motion to set aside said judgment, upon the grounds set forth in the petition and affidavit attached to the notice, which were: "That at the time said judgment was taken and entered the defendant supposed that the said costs and disbursements making up the same had been advanced and paid by the plaintiff, and that the same were due to the plaintiff; that since the entry of said judgment, and within the past few days, to wit, on the 11th day of December, 1910, this defendant has ascertained, through copies of the records of the circuit court of Wayne county, state of Indiana, which has been duly certified in accordance with the acts of Congress, and are in his possession, that the costs of preparing and printing the record on appeal of this action were furnished and paid by Henry S. Burns, receiver of the Richmond City Mill Works, and not by said plaintiff bank; and that said costs and disbursements are not due said plaintiff bank, but, if they are due to any one, are due to the said Richmond City Mill Works." The motion came up before Hon. Robert E. Copes, circuit judge, who thereafter filed his order, finding, among other things, as follows:

"That $250 of the costs and expenses taxed against the defendant, as part of said Supreme Court costs, and for which judgment was entered against said defendant by the clerk of this court, under rule 40 of the circuit court, on August 4, 1910, being judgment roll No. 9,642, was furnished and paid by the Richmond City Mill Works, and not by the plaintiff. Indeed, the plaintiff has not denied these allegations, or offered anything in reply or explanation thereof; and this seems to be practically an undisputed fact. So far as the Richmond City Mill Works is concerned, the defendant claims he has a good defense as to any claim which might or could be brought against him; and that said Richmond City Mill Works is indebted to said defendant in a much larger sum, but has no assets in this state. The main case was also tried before me, and on that trial an agreement, signed by counsel for both parties, was introduced in evidence, showing that the Richmond City Mill Works went into the hands of a receiver in March, 1907, and that such receiver filed his final report on October 26, 1908.

"I am of the opinion, and so find, that the plaintiff has not expended the said sum of $250 of said costs, so taxed and entered, and is therefore not entitled to have judgment for, and to receive, the said $250, under rule 40, of this state; and, further, that the defendant is entitled to relief from so much of said judgment as embraces the said sum of $250, under section 195 of volume 2, part 1, of the Code; and therefore ordered and adjudged that the judgment heretofore rendered and entered in this court, by the clerk thereof, on August 4, 1910, being judgment roll No. 9,642, in favor of

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