Walker v. Hannon

• Decision Date: 29 May 1939
• Docket Number: 14885.
• Citation: 3 S.E.2d 243,191 S.C. 14
• Parties: WALKER v. HANNON et al.
• Court: South Carolina Supreme Court

3 S.E.2d 243

191 S.C. 14

WALKER v. HANNON et al.

No. 14885.

Supreme Court of South Carolina

May 29, 1939

Carlisle Brown & Carlisle, of Spartanburg, for appellant.

L G. Southard, of Spartanburg, for respondents receivers of J N. Cudd.

Perrin & Tinsley, of Spartanburg, for respondent receiver of J J. Cudd.

Donald Russell, L. G. Southard, Osborne & Butler, Lyles & Daniel, Perrin & Tinsley, Jennings L. Thompson, D. W. Galloway, J. C. Wrightson, Evans, Galbraith & Holcombe, C. M. Drummond, R. B. Paslay, and C. Y. Brown, all of Spartanburg, and Wolfe & Fort and Hall, Vassy & Hall, all of Gaffney, for respondents certain creditors of J. N. Cudd and also for certain creditors of J. J. Cudd.

G. DUNCAN BELLINGER, Acting Associate Justice.

This appeal arose out of two proceedings pending in the Court of Common Pleas for Spartanburg County,to wit: The receivership proceedings of J. N. Cudd, entitled C. H. Dixon, etc., Plaintiff, v. J. N. Cudd et al., Defendants, and the receivership proceedings of J. J. Cudd, entitled Southern Trust Company, etc., Plaintiff, v. J. J. Cudd, etal., Defendants. The record fails to explain why, or how, the caption of the case now before this Court became entitled L. P. Walker, appellant, versus R. A. Hannon and John L. Lancaster, as Receivers of J. N. Cudd, Jesse W. Boyd, as Receivers of J. J. Cudd, as Receivers of Certain Banks and other Creditors of the Estate of J. N. Cudd and of the Estate of J. J. Cudd, especially so since the appeal is from an Order of the Honorable T. S. Sease, Resident Circuit Judge, dated August 8, 1938, and captioned both in the case of Southern Trust company v. J. J. Cudd and in the case of C.H. Dixon v. J. N. Cudd. As no point was raised as to the erroneous caption, we will disregard it, except to say that it but adds confusion to a very complicated record.

The appeal is from an Order of His Honor, Judge Sease, captioned in both proceedings, filed August 9, 1938, dismissing the petition of L. P. Walker praying for modification in certain respects of an Order passed by Judge Sease on July 15, 1938, which Order in turn revoked certain previous Orders passed in the receivership proceedings of J. N. Cudd and in the receivership of J. J. Cudd, relating to the sale of a business property in Spartanburg, South Carolina, known as the "Elite Building."

There were six Orders passed looking towards the sale of the "Elite Building" before the Order appealed from was filed August 9, 1938, the several Orders being tabulated as follows:

"Name Proceeding Date of Effect of Order

of Filing

Judge

1. (J. J. Cudd) June 17 Conditionally accepting Walker bid of

Sease $67,500.00.

2. (J. J. Cudd) July 7 Revoking order filed June 17 and accepting

Sease Walker bid of $67,500.00.

3. (J. N. Cudd) July 9 Accepting Walker bid of $67,500.00 and

Oxner directing J. N. Cudd receivers to join in

deed.

4. (Both) July 16 'Revoking the orders already signed looking to

Sease a sale' and directing that bids be

advertised for and opened July 25.

5. (Both) July 25 Accepting Walker bid of $72,901.00.

Sease

6. (Both) August 9 Dismissing Walker petition. This is the order

Sease appealed from."

The appellant acquired the "Elite Building" for Seventy-two Thousand Nine Hundred and One and no/100 ($72,901) Dollars, by compliance with Judge Sease's Order of July 25, 1938.

The appellant's contention is that Judge Sease's Order overruling his petition should be reversed and that he should be restored to the status which he occupied by virtue of the Orders of July 7 and July 9, 1938, respectively. That is, that he became subrogated to the rights of the parties who consented to the sale to appellant for the sum of Sixty-seven Thousand Five Hundred and no/100 ($67,500) Dollars.

The appellant was not a party of record to either of the receivership proceedings.

The facts surrounding the issuance of the Orders of July 7 and July 9 as set forth in the record satisfactorily show that those Orders were signed upon condition that they were to be consented to by the attorneys for all of the creditors of record in each receivership proceeding before they should be filed and thereby become effective. However, for some unexplained reason, the Orders were filed in the office of the Clerk of Court for Spartanburg County notwithstanding they had not been consented to by all parties of record, and therefore should not have been filed, and were without legal force or effect. It was, we think, therefore, properly the duty of Judge Sease to judicially declare such Orders of no force and effect, as he did do by his Order dated July 15, 1938. At the hearing before Judge Sease on July 14, 1938, appellant, although not a party to the proceedings, was represented by counsel who opposed the passage of the Order of July 15, 1938.

The appellant, notwithstanding that he was not a party of record acted as though he considered himself such, and the respondents by their conduct treated him as if he were a party. If appellant were a party by reason of the interest he acquired in the subject matter of the action, namely the "Elite Building", or if he became a party by his course and conduct, and if he considered himself aggrieved by the Order of Judge Sease, dated July 15, 1938, he should have appealed to this Court from that Order, within the time...