BARRON v. THOMPSON

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Docket Number

10117

Attorney(S)

Messrs. Wallace Barron, for plaintiffs-appellant, cite: As to error in not allowing plaintiffs attorney's fee: 71 S. S.C. 250; 23 A. E. En. Law 1064, 2 and 3; 21 En. Pl. Pr. 558c. As to insufficiency of tender by defendants: 71 S.C. 250; 28 A. E. En. Law, p. 40, 2c; 17 S.C. 334; 21 En. P. P. 547, N. 45; 21 En. Pl. Pr. 580, 1 and 2 and 7; 88 S.C. 525. Mr. A.C. Mann, for defendants-appellants, submits: That the exceptions of plaintiff-appellant are not properly framed, and do not come sufficiently within the rule to entitle them to the consideration of the Court: Rule 5 of the Supreme Court; 99 S.C. 200; 56 S.C. 38. Costs in equity cases are within the discretion of the trial Judge. Also attorney's fee in a case of foreclosure is subject to the control of a Court of equity: 84 S.C. 458. As to costs in equity cases: 82 S.C. 109; 28 S.C. 218; 58 S.C. 68. As to attorney's fees in equity cases: 95 S.C. 343; 97 S.C. 477; 94 S.C. 383. As to tender: Civil Code, sections 3461-3461a; 26 S.C. 337; 88 S.C. 525. Tender was kept open: 91 S.C. 231.

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BARRON ET AL. v. THOMPSON ET AL.

January 18, 1919. The opinion of the Court was delivered by

MR. CHIEF JUSTICE GARY.

For the reasons therein stated, the judgment of the Circuit Court is affirmed.

MESSRS. JUSTICES HYDRICK, WATTS and FRAMER concur.

MR. JUSTICE GAGE. I dissent from the judgment of the Court. The master found that the plaintiff was guilty of fraud in bringing the action; and the Court did not reverse that finding. The Court found the plaintiff had not right to sue, and should have accepted the tender.

The master reported that "the $270 claimed to have been tendered by the plaintiff and claimed to have been paid into Court was in fact received by me as master as an officer of the Court as a payment of the money into Court." The master further reported that he "voluntarily" paid the money back to the defendant's attorney.

The defendant, therefore, has not failed in the performance of any duty. The plaintiff has abandoned his right, and is not entitled now to set up a lien.

BARRON ET AL. v. THOMPSON ET AL.

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