Henry v. Blakely
| Decision Date | 28 November 1949 |
| Docket Number | 16286. |
| Citation | 56 S.E.2d 581,216 S.C. 13 |
| Parties | HENRY v. BLAKELY. STANBACK v. JAGGERS. |
| Court | South Carolina Supreme Court |
A. T. Henry, Chester, Angus H. Macaulay, Chester Charles W. McTeer, Chester, for appellant.
McFadden & McFadden, Chester, for respondent.
Pursuant to judgment for plaintiff in an action in the Court of Common Pleas for Chester County to foreclose a chattel mortgage covering the automobile involved, wherein J. S. Stanback was plaintiff and Floyd Jaggers was the defendant, execution was issued, and a levy on the automobile was made by the sheriff of said County, who advertised the sale thereof in a notice prepared for him by the petitioner-appellant herein as attorney for the plaintiff (hereinafter referred to merely as appellant). The notice was in the usual and accepted form fixing the time thereof 'within the legal hours of sale,' and also 'at 11 o'clock A.M.,' on the 2nd day of May, 1949, and the place of the sale was designated 'at the Chester County Court House.'
It is not dispute that the balance due on the chattel mortgage is more than Four hundred ($400.00) Dollars, and that had the appellant and his associate counsel, or either of them, been at the sale, they would have bid to the amount due on the mortgage to their client, in accord with his instructions. Nor is any issue raised as to the right of the appellant herein to institute and maintain the intervening proceeding from which this appeal stems. In other words, the intervening proceeding was treated as though it had been brought by the original plaintiff primarily for his relief and secondarily, for the protection of appellant and the counsel associated with him in their representation of plaintiff.
On May 2, 1949, being the first Monday in May (sale day), the Clerk of Court held a legal sale of real estate, pursuant to notice, and under an Order of Court, the same being made at 11 o'clock A.M., in front of the Courthouse.
The appellant and his associate counsel were at the front of the Courthouse at the hour and on the day these sales (the real estate by the Clerk of Court, and the automobile by the Sheriff) were advertised to be made. The appellant's sole purpose in being there was to protect the interest of his client at the sheriff's sale of this automobile, but his associate counsel had an additional reason for being present (at the front door of the Courthouse) for he was also interested in the real estate to be sold by the Clerk of Court.
The person who usually acts as the auctioneer at judicial sales conducted by the Clerk of Court for Chester County was absent on this sale day, and at the request of the Clerk of Court the appellant consented to act as auctioneer, and publicly announced that immediately upon the conclusion of the sale of the real estate, the sheriff would sell the automobile here involved. When the Sheriff, at the conclusion of the sale of the real estate (there was only one sale) did not make his appearance, the appellant and his associate counsel went to the office of the sheriff to ascertain why he was not at the front of the Courthouse to sell the automobile, and were informed that the sale had been held in the rear of the Courthouse while the sale of real estate by the Clerk of Court was being made at the front, and that the automobile had been sold to respondent on his bid therefor of Eighty-two and 50/100 ($82.50) Dollars, which sum, according to the petition of the appellant and supporting affidavits, was a most inadequate price, the then value thereof being Five hundred ($500.00) Dollars.
Immediately following the receipt of the information that the automobile had been sold, and to respondent for the amount above stated appellant tendered to respondent the sum of $82.50 which was refused. Thereupon, appellant served notice on the Sheriff of Chester County and the respondent that he would move to have the sale set aside.
Upon petition of the appellant setting forth substantially the pertinent and relevant facts as hereinabove stated, though not in such detail, of the circumstances surrounding the sale of this automobile, and the excusable failure of the appellant and/or his associate counsel to attend the sale and protect the interest of their client, thus resulting in the automobile being sold for a most inadequate price and at great loss to the plaintiff (appellant's client), the appellant procured an order in the Court of Common Pleas requiring respondent to show cause as to why the sale of the automobile involved should not be declared null and void and set aside, and the automobile resold at a later date.
Respondent duly made his return to the rule to show cause, and after hearing arguments, the Circuit Judge held the return sufficient, declared the sale of the automobile valid and legal, and adjudged that the respondent was the owner...
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