Miller v. Newell

• Decision Date: 25 October 1883
• Citation: 20 S.C. 123
• Parties: MILLER v. NEWELL.
• Court: South Carolina Supreme Court

20 S.C. 123

MILLER v. NEWELL.

Supreme Court of South Carolina.

October 25, 1883

1. The Court of Equity could not decree specific performance of an agreement between the plaintiff in a slander case and his attorneys, that he would pay to them a part of his recovery out of the verdict when obtained, or a portion of the verdict itself.

2. If in such case, the verdict, when obtained, was satisfied through collusion between plaintiff and defendant to the injury of plaintiff's attorneys, the court would not order the satisfaction to be vacated, as specific performance of such agreement between plaintiff and his attorneys could not be decreed.

3. A proceeding by rule, on the motion of plaintiff's attorneys, to require the defendant in such slander case to show cause why a satisfaction of the verdict should not be vacated, is in the nature of a bill for specific performance and cannot be entertained.

4. The attorneys, as creditors of the plaintiff, could not proceed against the defendant for an alleged fraud in the satisfaction, until they had exhausted their legal remedies against their debtor.

5. A chose in action arising out of tort strictly personal, as slander, is not assignable. After verdict in slander, but before judgment entered thereon and while appeal is pending the claim for damages continues to be a chose in action.

6. An assignment may be made by parol, but doubted whether the mere declaration " I do assign," in the absence of the subject-matter, constitutes an assignment.

7. The facts and circumstances of this case did not give defendant knowledge of the plaintiff's intended fraud upon his attorneys, nor were they sufficient notice to put defendant upon the inquiry. The findings of fact by the Circuit judge on the return to the rule, not concurred in.

MCGOWAN A. J., dissenting .

Before COTHRAN, J., Anderson, October, 1882.

The order of the Circuit judge, discharging the rule in this case, was as follows:

This is proceeding by rule upon the defendant to show cause why the entry of satisfaction on the sheriff's book of a certain execution in favor of the plaintiff against the defendant for the sum of $2,000, should not be held to be satisfaction only pro tanto -that is to say, to the extent of $1,000, the sum actually paid, besides costs; and the sheriff required to enforce the execution for the balance thereof against the defendant for and on behalf of the plaintiff's attorneys in said cause. The respondent (defendant) made return to the rule, and upon this and certain affidavits in support of it, and upon affidavits submitted in behalf of the actors, the cause came on to be heard by the court at the Fall Term, 1882, for Anderson county.

The following brief history is deemed necessary for a proper understanding of the questions involved: The main cause, which was an action for slander, was tried at the October Term, 1881, of the court, and resulted in a verdict of $2,000 for the plaintiff. The defendant's counsel moved upon the minutes of the presiding judge for a new trial, which was argued and refused during that term of the court, to which refusal the defendant, by his counsel, excepted. Within ten days the defendant's counsel served upon the plaintiff's counsel their notice and grounds of appeal, addressed only to the plaintiff's counsel-no copy of which was served upon the presiding judge within thirty days from the service of that notice, to wit, on November 22d. By means of the intervention and efforts of " mutual friends," and with the aid of the senior counsel of the defendant, who prepared the papers, but who had no further participation in the matter or knowledge of the negotiations, the defendant and the plaintiff effected a settlement of the controversy between them by the former paying to the latter the sum of $1,000, in full discharge and satisfaction of the said verdict. It was agreed at the time, and by all the parties to this settlement, and by those who were present, excepting J. B. Watson, who did not so understand it, as he says, that this settlement was to be kept secret from that day, Tuesday, November 22d, until Saturday, November 26th. On the day last mentioned, the defendant's counsel served upon the plaintiff's counsel a written notice, stating that the matter in controversy between plaintiff and defendant had been adjusted and settled by them; that no judgment or execution should be entered upon said verdict, or any portion of it, and that the whole case should be discontinued.

On November 30th the counsel for the plaintiff procured an order from the clerk of the Supreme Court dismissing the appeal in the cause, for failure on the part of the appellant to serve the presiding judge with notice of the appeal and grounds, and for failure to file the return with the clerk of the Supreme Court within the time required by law. On December 2d, judgment was entered up by plaintiff's counsel upon the verdict and execution lodged with the sheriff; and on January 9th following, the defendant, by advice of his counsel, paid to the sheriff the taxed costs of the case, and produced the plaintiff's receipt, purporting to be in full satisfaction of his entire claim, which was duly entered on the execution, or upon the execution book of the sheriff. In the meantime-that is to say, between November 22d and 26th, 1881, the plaintiff Miller fled from the State, and has not since returned. At the next term of the court the actors herein applied for and obtained the rule which, with the return thereto and the various affidavits in the cause, are now under consideration.

The issues involved are both difficult and delicate, but they may be justly determined by answering correctly the three following questions: 1. Was there any appeal pending in the cause on November 22d, 1881? 2. Was there such an assignment by the plaintiff to Orr, Wells & Allen of one-half of the recovery of $2,000; or such an agreement to pay them that sum out of the recovery, as to give them an enforcible lien for the same? 3. Was there such actual notice given to the defendant of this assignment or agreement; or did he have such knowledge of facts concerning it as should have put a reasonable man upon inquiry, whereby, in disregarding the one or failing to follow up the other, he has become legally liable for actively or negligently causing the actors here to lose their debt?

First-as to the appeal pending. After some possible contrariety of decision in the batch of cases reported in 12 S. C. R. , beginning with Rogers & Nash, p. 559, and Sullivan & Speights, p. 561, and Lake & Moore, p. 563, with the case of Coleman v. Heller , 13 S. C. 491, the true rule seems to be adducible from the case last cited, and is, that the first section of the act of 1878, 16 Stat. 698, was only meant to cover the case where no exceptions were taken at the time. If they were so taken, then service of copy of exceptions under the act was unnecessary. Did the defendant at the time except to the rulings of the presiding judge? To make objections sufficient to sustain an appeal, it is not necessary that the word exceptions should be used; the better practice undoubtedly is, to give the court information at the time the party excepts, and have it noted on the record, so that there can be no misunderstanding about it; but it has been held that when it appears from the record that the judge was apprised of the intention to rely on the propositions advanced by way of exception, that is sufficient to constitute an exception, though there is no formal request to note an exception. Many cases cited . Continuing, the court says: " Here the propositions by way of exception were positive and unmistakable. *** We think it appears from the record that the judge was apprised of the intention to rely on the propositions advanced by way of exception, and that is sufficient to constitute an exception, although there was no formal request to note an exception." The motion to dismiss the appeal was refused.

Here no exception by the defendant's counsel appears upon the record nor upon the calendar, where the notice of motion on the minutes is entered; but it is admitted that the motion was made, that it was refused, and that the defendant's counsel excepted. The grounds of exception, as afterward served upon plaintiff's counsel, but not upon the presiding judge, are, in substance, as follows: 1. For excessive damages. 2. For admitting incompetent testimony. 3. For excluding explanatory testimony. 4. For a variance between the allegata and probata . 5. For refusing to grant a non-suit. True, it does not satisfactorily appear that these propositions were " advanced by way of exception," at the time the motion was made and refused. It is more probable that they were enlarged when afterwards formulated and served upon the plaintiff's attorneys within ten days after the refusal of the motion.

**3 The question, however, as to the appeal pending in the cause is, in my opinion, incidental and collateral, and only material to the inquiry here, as furnishing reasonable inducement to the alleged compromise. Its only value is in aid of motive, and the belief of the fact by the defendant's counsel, as shown by his affidavit, and the deposition of J. C. Milford, that pending the negotiations the defendant, Newell, said he would not give $1,400 to compromise-" that he would take the case to the Supreme Court first," -satisfy me that both counsel and client believed that the appeal was pending, and whether it was technically so in fact or not was not material.

Second. As to the assignment and lien, and first as to the lien. An attorney's lien, as now generally recognized, is of two kinds: The one a general lien upon the papers in his hands belonging to his...