Pringle v. Sizer

Where there arc several orders of the Circuit Court and a party appeals from later orders, leaving the first unaffected by his appeal, he is assumed to admit its correctness, and cannot, after the appeal is decided, go back to the first order and make that the subject of another appeal.

After the decision of the Supreme Court at April Term, 1870, (reported 2 S. C., 64,) His Honor Judge Thomas, on October 11th, 1870, made the following order: “It is ordered that upon the payment into Court of the sum of $50, to be applied, under the decree of the Supreme Court, to the claim of Chafee, St. Amand & Croft, and the further payment by the defendants of their own costs already incurred in this case, the bill be dismissed, unless within thirty days from the date of this order the proper parties representing the said claim of Chafee, St. Amand & Croft file an amended bill against the defendants to recover any further sum which they may consider due upon said claim under the terms of the said decree. That upon the dismissal of the bill, in accordance with the terms of this order, and the payment of the costs then remaining, by the proper parties representing the claim of Chafee, St. Amand & Croft, that the Clerk .p^y to them the sum paid into Court under the terms of this order.” ' Four other orders were afterwards made in the cause — from the two last, two of which dated one February 28, and the other May 22, 1874, an appeal was taken by Thomas H. Croft, representing the firm of Chafee, St. Amand & Croft. The appeal was heard in December, 1874, and the decision filed February 28, 1875. It is as follows: Moses, C. J. The principal case was heard at April Term, 1870. Its judgment was the law of it. If the firm represented by Chafee, one of the plaintiffs, lost the benefits to which it was thereunder entitled, it was through its acquiescence in the order made by Judge Thomas on the 11th of October, 1870. Its failure to carry out the decree of this Court was too apparent to be mistaken, and yet no appeal was taken to correct the error. — See Pringle vs. Sizer, 3 S. C., 337. The enforcement of the decree, by the very terms of it, depended on the action of the firm — the party having the real interest — and if it has lost any benefit which it might have derived from it, the result has been the consequence of its own inaction. If the order of Judge Thomas, not corrected because of the default of the party now complaining, until reversed remains of force, all the subsequent orders made by the Circuit Judge are irregular and must be set aside. We, too, are estopped from interposing by its existing force and effect, no appeal having been taken from it. A remittitur of the Court, dated March 4, 1875, was sent by the Clerk to the Circuit Court, and thereupon the following order, dated March 11, 1875, was made by His Honor Judge Mackey: “Thomas H. Croft, as survivor aforesaid, having appealed to the Supreme Court from the judgment of this Court, and said Supreme Court having refused the motion of appellant: Now, on reading and filing the remittitur from the said Supreme Court, and on motion of R. E. Allison, attorney for the respondent, it is ordered that the judgment of the Supreme Court be, and the same is hereby, made the judgment of this Court, and that the respondent, Bela Sizer, have execution for the costs that have accrued thereon. And the Clerk is hereby ordered to apply any money paid into Court in his hands, and now belonging to any party liable for costs in this cause, to the payment of their costs, or a sufficiency thereof to pay such costs as may be included in this order or judgment.” Thomas H. Croft then gave notice of appeal from the orders above recited. The grounds of appeal from the order of Judge Thomas are as follows: 1. Because said order conflicts with the decree of the Supreme Court and is erroneous. 2. Because said order failed to carry out the decree of the Supreme Court. Those from the order of Judge Mackey are as follows: 1. Because the appeal referred to, having prevailed to set aside the orders appealed from, the presiding Judge, it is respectfully submitted, in his said order of the 11th of March, 1875, erred in ruling that the appellant’s motion was refused by the Supreme Court. 2. Because said order is, in other respects, erroneous.