Thompson v. Thompson
| Decision Date | 01 January 1875 |
| Citation | 6 S.C. 279 |
| Court | South Carolina Supreme Court |
| Parties | THOMPSON v. THOMPSON. |
OPINION TEXT STARTS HERE
BEFORE MOSES, J., AT NEWBERRY, FEBRUARY, 1875.
This case was heard upon a brief, which is as follows:
“The bill in this case was filed by the plaintiff, as executrix of her late husband, Thos. W. Thompson, for the purpose of calling on the creditors and marshaling assets for the sale of the real estate of the said testator to and in paying his debts, and for dower in said real estate. The dower was laid off, the real estate sold, and the assets marshaled by the report of Silas Johnstone, as Special Referee, to which exceptions were filed. While said case was pending on the report and exceptions, and before they were heard, Silas Johnstone filed his petition in re this case, praying that the costs and fees allowed him in said report, as late Commissioner in Equity, and as Referee, should be paid to him, which was ordered to be done by His Honor M. Moses, at Chambers, on the 9th day of December, 1873. At June Term, 1874, the case came up regularly for hearing on the report and exceptions, except those disposed of by the aforesaid order at Chambers, and His Honor confirmed the said report. From these two orders the creditors have appealed.
A house and lot was assigned to the plaintiff for life, as her dower in the real estate of her said husband, and at her death was sold by order of the Court, and D. Mower bought and paid for it. The two defendants, Thos. A. and John M. Thompson, filed proceedings against Cynthia Mower and G. S. Mower, the heirs at law of D. Mower, claiming homestead in said house and lot. They notified Mr. Fair, the attorney of the plaintiffs, of this suit, and required him to defend the same, and he agreed to do so, and requested Jones & Jones to aid in said defense, and consented that their fee and costs should be paid out of the estate of T. W. Thompson. The attorneys for the creditors, in writing, admitted the above statement, and consented that said costs and fee should be paid out of the estate. The Referee refused to allow them.
The exceptions and Exhibit A filed with the report will sufficiently explain the points at issue.
Just as I had closed the foregoing report, in which I had excluded a claim for bill of costs from the Probate Court in the case of John M. Thompson vs. Cynthia Mower et al., petition for homestead, amounting to $272.90 a paper was presented to me, signed by attorneys representing the creditors, consenting ‘to the payment of this claim from the assets of the estate of T. W. Thompson,’ together with a statement of the facts connected with the matter. These papers accompany this report. The attorneys representing Mr. Fair, who was of counsel in the case, ask leave to withdraw from the claim the charge of $100 for counsel fee in his behalf, so that the bill amounts in gross to $172.90. These latter attorneys, representing Mr. Fair, and also, through him, the estate of the testator, object to the allowance of the claim, and upon a review of the facts and authorities furnished to sustain the claim, I do not see wherein the estate of the testator is liable for the costs of the petition. The creditors may consent to do what they please with their own, and if they choose to pay this bill of costs, they can do so by contributing one and seven-tenths per cent. from their respective demands.
July 25th, 1873.
SILAS JOHNSTONE.”
“The following exceptions are taken to the report of Silas Johnstone, Special Referee in this case, dated 23d day of July, 1873, on the part of the following creditors: G. M. Bowers, Henry Dominick, W. J. Duffie, G. W. Glenn, J. H. Hunt, L. J. Jones, Wm. Mars, J. B. O'Neall, estate; B. J. Ramage, J. S. Renwick, F. E. Sloan, J. J. Sloan, Jenet Sloan, James Sloan, Thos. G. Sloan and Cynthia Mower.
1. Because the Referee erred in taxing the costs under the old fee bill, instead of under Code or new fee bill.
2. Because the Referee erred in allowing himself under the old fee bill costs to the amount of $415.70 and a fee of $300 besides, making in all $715.70.
3. Because the Referee erred, even supposing he is entitled to tax his costs under the old fee bill and also under the Code, in allowing himself under the old fee bill $256 for 128 claims, when he only reports on 74 claims; and also his regular fee, $13 for thirteen days on reference, when the fee bill only allows $1 per day for each day on reference, no matter how many claims may be established on one day.
4. Because the Referee erred in allowing himself a fee of $300, instead of $3 for every day spent in the business of the reference as allowed by the Code, and no more, except by an agreement of the parties in writing.
5. Because the Referee erred in not...
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