Middleton v. Denmark Ice & Fuel Co.
| Decision Date | 24 March 1914 |
| Citation | 81 S.E. 157,97 S.C. 457 |
| Parties | MIDDLETON v. DENMARK ICE & FUEL CO. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Bamberg County; Hayne F Rice, Judge.
Action by A. G. Middleton against the Denmark Ice & Fuel Company. From an order modifying the judgment, plaintiff appeals. Reversed.
J Wesley Crum, Jr., of Denmark, S. C., for appellant.
J. W Vincent, of Hampton, for respondent.
This appeal is by Citizens' Exchange Bank in the above entitled cause. The Citizens' Exchange Bank filed a claim with the receivers of the Denmark Ice & Fuel Company for $3,765, with interest at the rate of 8 per cent per annum, payable annually, and 10 per cent. of that amount as attorney's fees. The claim was for money loaned, and was secured by a mortgage of the company's property, which provided for the interest and the attorney's fees claimed. The cause was referred to the master to hear and determine all issues of law and fact and report the same to the court. Master made his report to the court, and found that the Citizens' Exchange Bank had the first lien after what was due for taxes over all of the property of the Denmark Ice & Fuel Company for $3,765, with interest from the date of the mortgage at the rate of 8 per cent. per annum, payable annually, and 10 per cent. on that amount as attorney's fees. No exceptions were taken by any one to the master's report. Subsequently, on July 8, 1913, his honor, Judge Ernest Gary, filed his decree confirming and approving the report of the master. To the decree of Judge Gary no notice of appeal was given, nor any exceptions taken. The decree of Judge Gary was filed during term time, while he was presiding in Bamberg. Subsequently, without appealing to the Supreme Court, one of the receivers of the Denmark Ice & Fuel Company, after notice obtained from Judge Rice at Aiken, S. C., on August 9, 1913, an order modifying the decree of Judge Gary, and reducing the fee allowed the attorney for Citizens' Exchange Bank to $150, from this order Citizens' Exchange Bank appeals, and by five exceptions challenges the correctness of Judge Rice's ruling. It is unnecessary to consider these exceptions separately. The exceptions must be sustained. When the decree of Judge Gary was filed, any party to the action who felt aggrieved should have appealed from the decree, and, failing to do so, the cause becomes res adjudicata, on the ground that they are concluded by acquiescence in the decree of his honor, Judge Gary, by failure to appeal therefrom.
His honor, Judge Rice...
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