Gibbes v. Morrison
| Decision Date | 26 June 1893 |
| Parties | GIBBES v. MORRISON, Sheriff. |
| Court | South Carolina Supreme Court |
Appeal from common pleas circuit court of Berkeley county; L. B Fraser, Judge.
Petition by James G. Gibbes for an order directing John B. Morrison as sheriff of Berkeley county, to put petitioner in possession of certain land purchased by him at tax sale, as required by Act 1887, (19 St. 862,) and the amendments thereto. From a judgment discharging a rule to show cause and dismissing the petition, Gibbes appeals. Affirmed.
McCradys & Bacot, for appellant.
E. J Dennis, for respondent.
In this case the appellant filed his petition, addressed to the presiding judge of the court of common pleas, setting forth substantially, that he had become the purchaser of certain land in the county of Berkeley, which respondent had sold under a warrant or execution issued by the county treasurer of said county to enforce the payment of taxes on said land and that, although he had complied with the terms of said sale, and received titles from the said respondent, he had neglected and refused, upon demand, to put appellant in possession of said land, as required by the provisions of the act of 1887. (19 St. 862,) and the amendments thereto, under which the sale had been made; wherefore the petitioner prayed for an order directing the said John B. Morrison, sheriff, as aforesaid, to put the petitioner in possession of said land, as required by the statute. On hearing this petition his honor, Judge Fraser, issued an order requiring the respondent to show cause why the appellant should not be put in possession of the land mentioned in the petition. To this rule to show cause the respondent made return, setting forth his reasons for not putting the appellant in possession of the land, but not raising any question of jurisdiction. These reasons need not be stated here, as, under the view which we take of the case, it would not only be unnecessary, but perhaps improper, for us to consider the merits; the circuit judge holding that as the execution under which the land was sold did not issue out of this court--the court of common pleas--he had "no jurisdiction by rule on the sheriff to require him to perform duties imposed on him by law and under execution issued by some other authority than this court," referring to a case in Darlington as sustaining his view. The case alluded to by his honor is, doubtless, the case of James v. Smith, 2 S. C. 183, which we think fully supports his view. In that case the plaintiffs instituted proceedings, under the act of 1866, (13 St. 416,) before a magistrate to eject the defendants, Smith and Bristow, alleged to be tenants of plaintiffs, from certain lands, and upon hearing the same the magistrate issued his warrant, directed to Thomas C. Cox, as sheriff of said county, requiring him to eject said Smith and Bristow from said premised, and to put the plaintiffs in possession of the same. The warrant having been lodged with the sheriff, and he having failed to execute the same, the plaintiffs applied to and obtained from the court of common pleas a rule on the sheriff to show cause why he should not be attached for a contempt because of his failure to execute said warrant. To this rule the sheriff made return, "and for cause submitted inter alia that the plaintiffs have no right to procure an attachment against him for contempt of court for failing to execute the process of another and inferior jurisdiction." The circuit judge held the return insufficient, made the rule absolute, ordered the sheriff forth with to execute the warrant issued by the magistrate, and that, upon his failure so to do by a day named, he be fined and be imprisoned until he purged his contempt, and that a writ of attachment do issue to enforce the order. From this order the sheriff appealed, upon the ground, among others, that the circuit judge "had no right to entertain a rule against the sheriff for failing or refusing to execute the process of an inferior tribunal, or any tribunal except his own court." Pending this appeal the writ of attachment was issued, and the sheriff was arrested and imprisoned thereunder; whereupon he applied to the chief justice for a writ of habeas corpus, which was granted, and upon hearing the return thereto the sheriff moved for and obtained his discharge. In granting the order of discharge, Moses, C.J., rendered an elaborate opinion, holding that the circuit court of common pleas has no jurisdiction, upon a mere rule to show cause, to attach a sheriff for...
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