Warren, Wallace & Co. v. Simon

• Decision Date: 10 January 1882
• Docket Number: CASE No. 1129.
• Citation: 16 S.C. 362
• Court: South Carolina Supreme Court
• Parties: WARREN, WALLACE & CO. v. SIMON.

16 S.C. 362

WARREN, WALLACE & CO.

v.SIMON.

CASE No. 1129.

Supreme Court of South Carolina.

Jan. 10th, 1882.

1. A Circuit judge has no power to review and reverse the action of another Circuit judge.

2. Where a Circuit judge refused to grant an order directing the sheriff to pay over money in his hands according to the terms of a verdict rendered in an action to which he was no party, and no appeal was taken from such refusal, another Circuit judge may not afterwards grant such order.

3. And the order was erroneous, independently of the former determination.

Before MACKEY, J., Barnwell, June, 1881.

The appeal in this case, which is fully stated in the opinion, was from the order of Judge Mackey, directing the sheriff to pay over the money in his hands.

Mr. L. B. O'Bryan, for appellants.

Mr. J. J. Brown, contra.

The opinion of the court was delivered by

MCIVER, A. J.

The plaintiffs and the defendant, Simon, held agricultural liens given by S. T. Moore and others, and the defendant, Mary E. Roberts, had a claim for rent on the same parties. Warrants were issued to enforce these liens, under which the sheriff sold the crops of the lienors, and now holds the proceeds of such sale, a controversy having arisen as to which of the parties are entitled to the proceeds. It does not appear that any rule was taken out against the sheriff, but the plaintiffs brought an action against the parties who gave the liens, together with the defendants, Simon and Roberts, the other claimants of the proceeds of the sale, to which action, however, the sheriff was not made a party, in which the plaintiffs prayed judgment that the proceeds of the sale, or so much thereof as may be necessary, be applied in satisfaction of their claim and the costs and disbursements of the action.

The case came on for trial before Judge Wallace and a jury, when the following verdict was rendered: “We find fifty dollars for Mrs. M. E. Roberts, and the balance in the hands of the sheriff for Warren, Wallace & Co.” The defendant, Simon, moved for a new trial, which Judge Wallace refused upon the ground “that it was useless, as the verdict was a nullity, and that judgment could not be entered thereon.” The attorney for the plaintiff then applied for an order requiring the sheriff to pay over the funds in his hands according to the terms of the verdict, which motion was also refused, “as the sheriff had never been made a party, and judgment could not be entered against him, and that the court could make no such order.” From these rulings of Judge Wallace there was no appeal.

Subsequently, the plaintiffs brought an action against the sheriff alone, in which the proceedings in the former action were stated, with the allegation that the sheriff has in his hands the funds in dispute, and that he declines, after demand, to pay out the...