Bratton v. Massey

1. On appeal from a Circuit decree overruling a demurrer, with costs to be paid out of certain proceeds of sale, this decree was reversed and tlie complaint dismissed. Held, that the direction for the payment of costs fell with the decree, although not mentioned in the exceptions nor in the opinion of this court. 2. Costs in equity causes, after the act of February 20th, 1880, (17 Stat. 303,) were governed by the former practice under rule 72 of the Circuit Courts, and, therefore, followed the event of the suit, if not otherwise ordered in the judgment. 3. Costs being in the discretion of the Circuit judge, his direction concerning them will not ordinarily be disturbed, and in this case is approved.

Before Cothran, J., Chester, April, 1882. Action by John S. Bratton against B. H. Massey et ah, commenced in August, 1879, heard by Kershaw, J., in June, 1880; an appeal from his decree was heard by this court, November term, 1880. See 15 S. C. The opinion states the case. The decree from which this appeal was taken, was as follows: At common law, costs were not given either to plaintiffs or defendants. But as a matter of statutory regulation (and it is purely such), it is of great antiquity. For a time, beginning with 6 Eckoard I., costs were allowed only to plaintiffs succeeding, or “ demandants,” as the parties were styled in the statutes. Afterwards by the Statute of Marlbridge, in the time of Henry III. they were allowed to the defendant prevailing; and so to this day. "When one brings his action and succeeds, it is difficult to perceive upon what grounds of justice or equity the party sued and who is obviously in default, should be relieved from the payment to the prevailing party of the expenses of the suit, by what name soever such expenses should be denominated. Upon the other hand, and upon grounds of equal justice, the defendant (should the plaintiff’s action fail) must be entitled to be repaid the expenses he has incurred in defending a wrongful claim. This seems to me to be the bed-rock, the very foundation-stone,, of the just and rudimentary principle, that costs should follow the event of the suit. I am not, however, so blindly devoted to this principle as to> hold it to be of universal application. Like all general rules, it is not without exceptions. But in the case presented here,, within the exceptions to the rule, it is as certain now as anything can be made, that a false claim was raised against the defendant, Massey (I do not mean this offensively), and that his land, descended from Mrs. Gilmore, was not liable to the debts'of' W. Taylor Gilmore, excepting that the plaintiff stands acquitted here of all imputations of bad faith. So far as the result is, he' might as well have selected any other parcel of land in Chester county for the satisfaction of his debt. It is contended, however, by the plaintiff’s counsel (1) that the Circuit judge ordered the costs to be paid out of the proceeds of the land; (2) that from this portion of the decree there was no appeal; (3) that the Supreme Court left that portion of the Circuit decree untouched, and thereby affirmed so much of it as decreed costs against the defendants. Admitting the-facts as stated, is this a legal sequence ? I think not. It will be seen, by reference to the brief in the cause, that the defendant “ appeals from the decree made,” &c. What part of the decree ?' The answer would naturally be, from the whole decree. Certainly not from any particular part of it. True, specific grounds of appeal are set out, bringing properly to the attention of the court of review the precise views which the appellant had of his case, and which he sought to impress upon the minds of the justices, regarding the matter of costs as ■an incident of the Circuit judge’s view of the case, and only as an incident, and as such, in my opinion, it has followed the case through its various stages. Abiding the final determination of the cause, the following authorities were cited by the defendants’ ■counsel, which I think sustain his view of the case. Woodson v. Palmer, Bail. Eq. 96; .Muse v. Peay, Dudley Eq. 236 ; Cleveland v. Gohrs, 13 8. C. 402; 3 Wait’s Pr. 454. It is necessary, however, in order to complete this decree, to pass upon certain other allowances of costs which appear in the itemized taxation made by the clerk; that is to say: J. & J. Hemphill, attorneys, $35; A. G. Brice, attorney, $30. These attorneys represented others of the defendants than B. H. Massey, and the items above were allowed to them, and charged upon the proceeds of the land, which it will be borne in mind was sold by consent of parties pending the litigation hereinbefore referred to. Having determined that this fund is not liable for the costs in controversy, how shall they be paid ? The plaintiff’s proceeding in this cause was not for the benefit of all who would join him in the suit and contribute to the expenses thereof. The attorneys above named represented creditors of "W. Taylor Gilmore, whose claims were assailed by the plaintiff, and his complaint having been dismissed, and the assault rendered thereby futile, I know of no rule, equitable or otherwise, that can relieve him from liability to them for these costs. It is true that the plaintiff brought them into court. He invited them to go upon the voyage, but not for the purpose of sharing with him the pleasure or the profit of the round trip; for he gave them to understand most distinctly, in paragraph "VII. of his complaint, that he would throw them overboard, if he could. The bark which sailed forth under such auspicious circumstances has been wrecked, and, hard as it may be, the inevitable consequence must follow the event of the suit. Wherefore, it is ordered, adjudged and decreed as follows: I. That the itemized taxation of costs, as made by the'clerk, be and the same is hereby affirmed. II. That the decision of the clerk, that said costs be paid from the proceeds of the sale of the lands sold in accordance with the decree of his Honor, J. B. Kershaw, be and the same is hereby reversed. III. That the defendant B. H. Massey, and the defendants represented by Messrs. J. & J. Hemphill and A. G. Brice, have leave to enter up judgments for the several amounts of costs allowed to them in the clerk’s taxation against the plaintiff, John S. Bratton, with leave to issue executions for the same. IV. That the three last items, to wit: Printing notice of sale of land twice, $17.50; taxes on property sold, $25.00; Clerk Curtis, commissions on sales, $27.30; total, $69.80, and any other expenses incident to the said sales, if there be any, be deducted from the proceeds of the sale, according to the proportionate interest of B. H. Massey and his co-tenant, Mobley, therein. V. And that the costs of this appeal be taxed by the clerk of the court against the respondent, John S. Bratton, and that the several parties interested herein have leave to issue executions for the same.