In re Wells

• Citation: 21 S.E. 334,43 S.C. 477
• Parties: In re WELLS et al. v. LATIMER et al. LATIMER
• Decision Date: 04 April 1895
• Court: South Carolina Supreme Court

21 S.E. 334

43 S.C. 477

In re WELLS et al.

LATIMER v. LATIMER et al.

Supreme Court of South Carolina

April 4, 1895

Appeal from common pleas circuit court of Greenville county; I. D Witherspoon, Judge.

Ex parte proceeding by G. G. Wells and James L. Orr, late partners in the practice of law under the firm name of Wells & Orr, in the matter of Ex parte Joseph P. and John H Latimer, as executors of the will of Hewlett Sullivan deceased, in the matter of Hewlett Sullivan against C. A Parkins and others, and James H. Latimer against Joseph P and John H. Latimer, as executors, for the modification of an order setting off the judgments in such actions. From a judgment for petitioners, the executors appeal. Affirmed.

Earle & Mooney, for appellants.

Cothran, Ansel & Cothran, for respondents.

POPE J.

It seems that Hewlett Sullivan, as plaintiff, recovered a judgment in the court of common pleas for Greenville county, in this state, for $2,121.05 and costs, against C. A. Parkins, P. D. Huff, John H. Latimer, and James P. Latimer, as defendants. Subsequently, the said Hewlett Sullivan departed this life testate, and Joseph P. Latimer and John H. Latimer qualified as the executors of his will. Thereafter, James H. Latimer, as plaintiff, brought his action against the said Joseph P. Latimer and John H. Latimer, as executors of the will of Hewlett Sullivan, deceased, to recover what was due him for services rendered to said Hewlett Sullivan, in his lifetime, in the court of common pleas for Greenville county, in this state. The said plaintiff, James H. Latimer, employed the law firm of Wells & Orr, composed of George G. Wells and James L. Orr, as his attorneys to institute and maintain his said suit; paying them a small retainer, and agreeing to give them 10 per cent. of his recovery in said suit, as their compensation as his attorneys. James H. Latimer, as said plaintiff, recovered a judgment against the said Joseph P. Latimer and John H. Latimer, as executors as aforesaid, for the sum of $1,825.03 and costs. The said attorneys, Wells & Orr, knew of the said judgment in the case of Hewlett Sullivan against C. A. Parkins et al. As soon as judgment was entered up and execution issued in the case of James H. Latimer against Joseph P. and John H. Latimer for the $1,825.03 and costs, the said James H. Latimer entered an assignment of 10 per cent. of said recovery to said Wells & Orr, on the execution lodged in the sheriff's office. The said Joseph P. Latimer and John H. Latimer, as said executors, intervened by piton to have the judgment of james H. Latimer against them, as executors of Hewlett Sullivan, deceased, for $1,825.03 and costs, paid by operation of law, by setting off against such judgment the judgment for $2,121.05 and costs recovered by their testator against James H. Latimer along with C. A. Parkins and others. On their motion a rule was issued by judge Izlar, and served upon the said James H. Latimer, requiring him to show cause why one judgment should not be set off against the other, but no notice was given to Wells & Orr of such proceedings. Judge Izlar, by an order dated 15th July, 1893, passed an order containing this provision, among others: "It is therefore ordered and adjudged that so much of the judgment entitled Hewlett Sullivan v. James H. Latimer and others, for the sum of $2,121.05 and costs, as will satisfy the judgment of James H. Latimer v. Jos. P. and John H. Latimer, as executors of the will of Hewlett Sullivan, deceased, be set off against the latter, and that the former judgment be satisfied pro tanto." Thereafter, about the 14th March, 1894, Wells and Orr each made affidavits setting forth substantially the foregoing facts, and caused the following notice to be served upon Joseph P. Latimer and John H. Latimer, as executors of Hewlett Sullivan, deceased: "Please to take notice that on the annexed affidavits [affidavits of George G. Wells and James L. Orr], and all the records and proceedings in the above-entitled cause, we will move the court, on the fourth day after service upon you, exclusive of the day of service, or as soon thereafter as counsel can be heard, for an order modifying the order of his honor, Judge Izlar, of date July 15, 1893, setting off the two judgments named in the caption [the same as is set out in the caption to this opinion], so far as the same affects the interest of ten per cent. on said last-named judgment [$1,825.03 and costs], previously assigned to Wells & Orr, and also the costs of said last-named judgment, and for such other relief as may be just." The petition of Wells & Orr came on to be heard before his honor, Judge Witherspoon, at the spring (1894) term of the court of common pleas for Greenville county; and, after hearing arguments on both sides of the controversy, he decided, in effect, that Judge Izlar's order should be so modified that the 10 per cent. of the recovery on the judgment for $1,825.03, and all the costs, should be excepted from the operation of Judge Izlar's order dated the 15th day of July, 1893. From this order, Joseph P. Latimer and John H. Latimer, as executors of last will of Hewlett Sullivan, deceased, now appeal, on the following grounds: (1) Because his honor erred in reversing the order of Judge Izlar, and in modifying the same. (2) Because his honor erred in modifying the order of Judge Izlar without having the report of the master and the accompanying testimony before him, upon which said order was based. (3) Because his honor erred, after final order, in opening the same,--changing the terms thereof,--on motion of petitioners, who are strangers to the record, and in not holding that the rights, if any, of the petitioners, should be enforced by a direct action. (4) Because, if his honor had jurisdiction to open and modify the order of Judge Izlar, the motion for that purpose should have been predicated upon a rule duly issued, and served upon the respondents, to show cause against it. (5) Because his honor erred in not holding that the assignees of a judgment take it subject to all equities in favor of the judgment debtor, including the right to set off one against the other. (6) Because his honor erred in not holding that Wells & Orr, having taken the assignment of the judgment of James H. Latimer v. J. P. and J. H. Latimer, as executors of Hewlett Sullivan, deceased, with full notice of the judgment of Hewlett Sullivan v. C. A. Parkins and others, hold the same subject to the rights of the respondents to set off the latter judgment against the former. (7) Because his honor erred in not holding that an assignment of a part of a judgment without the consent of the judgment debtor cannot affect him, and in not holding that the assignee of a part of a judgment will not be permitted to obtain the process or order of the court for its collection.

1. We do not see that the circuit judge erred in the matter embodied in the first exception. When it is considered that Judge Izlar, by his order, disposed of property duly assigned to Wells & Orr, without giving them an opportunity to be heard, it was practically closing the door of the court of justice upon them. It does not help Wells & Orr that this was unintentional on Judge Izlar's part; that no one called his...