Shillito v. City of Spartanburg

• Decision Date: 20 July 1949
• Docket Number: 16239.
• Parties: SHILLITO v. CITY OF SPARTANBURG et al.
• Court: South Carolina Supreme Court

54 S.E.2d 521

215 S.C. 83

SHILLITO v. CITY OF SPARTANBURG et al.

No. 16239.

Supreme Court of South Carolina

July 20, 1949

John G. Galbraith, Spartanburg, for appellants.

E. W. Johnson, Spartanburg, for respondent.

FISHBURNE, Justice.

When presiding in the Seventh Judicial Circuit at Spartanburg South Carolina, Hon. J. Woodrow Lewis heard upon the pleadings the case of Shillito v. Spartanburg, et al., a taxpayer's action, involving the constitutionality of an Act passed by the General Assembly, No. 841, Act Jan. 23 1946, 44 Stat. at Large, page 2494, providing for an annual tax levy in the City of Spartanburg for the benefit of the Spartanburg City Firemen's Pension Fund. He took the matter under advisement, adjourned the court sine die, left the circuit and returned to his home at Darlington, in the Fourth Judicial Circuit. Some time thereafter, he filed with the Clerk of the Court at Spartanburg his decree in which he adjudged the above mentioned Act unconstitutional, and ordered that the taxes collected under the unlawful assessment should constitute a part of the general funds of the City of Spratanburg, 'subject only to payment of such attorney's fees as may be allowed the attorney for the plaintiff by the court upon proper notice and application therefor before me, and for this purpose only jurisdiction is retained.'

An appeal was taken by the City of Spartanburg from the above mentioned judgment, and this court in an opinion filed December 7, 1948, Shillito v. City of Spartanburg, et al., 214 S.C. 11, 51 S.E.2d 95, 104, affirmed the judgment of the lower court, and sustained the allowance of a fee for the plaintiff's attorney, payable out of the funds derived from the unlawful levy. The opinion in its concluding paragraph, provides: 'This case is remanded to the court of common pleas of Spartanburg County for appropriate action on application for allowance of reasonable fees to respondent's counsel in conformity with the views herein expressed.'

On December 28, 1948, plaintiff served notice on the attorney's for the City of Spartanburg, that he would move before Judge Lewis at his Chambers in Darlington, South Carolina, on January 7, 1949, for an order fixing a reasonable fee to be paid his attorney for services rendered in the taxpayers' action.

Counsel for the City of Spartanburg served a Return and Notice upon the plaintiff's attorney objecting to the power and jurisdiction of Judge Lewis to hear and determine at his Chambers at Darlington, in the Fourth Circuit, the question of the amount of attorney's fees to be allowed. When the matter was called for hearing before Judge Lewis at Darlington, the City of Spartanburg objected to the jurisdiction of the Circuit Judge, and the objections were overruled. Thereafter, with the express understanding with the court that all rights under their objection were preserved, affidavits were submitted by the City of Spartanburg, and by the plaintiff on the issue of what amount would constitute a reasonable attorney's fee. Upon consideration of the opposing affidavits, and the entire record in the case of Shillito v. City of Spartanburg, supra the circuit judge held that the sum of $7,500 was a reasonable fee, and ordered and directed that this amount be paid to the attorney for the plaintiff out of the tax funds collected by the City of Spartanburg under the unconstitutional Act.

The appellant, the City of Spartanburg, in this appeal challenges the power and jurisdiction of Judge Lewis to hear the motion and determine at Darlington, in the Fourth Circuit, the amount of the fee to be allowed the taxpayer's attorney, upon the following grounds: (a) No application or motion to fix the amount had been made before him while he was presiding in the Seventh Circuit, in Spartanburg County; (b) No issue concerning the amount of a reasonable fee was submitted to him or heard by him while he was presiding in the Seventh Circuit; (c) The judgment of the Supreme Court specifically remanded the cause to the Court of Common Pleas for Spartanburg County; and (d) Judge Lewis was not a judge of the Seventh Circuit at any time subsequent to such remand.

In our opinion, the position taken by the appellant must be sustained under the circumstances stated, and the order of the lower court reversed upon the ground that Judge Lewis lost jurisdiction to pass upon the amount of attorney's...