Dilling, Baker & Co. v. Foster

Citations

• 21 S.C. 334
• 1884 S.C. LEXIS 100

Syllabus

<p>. 1. Copy-order to appear before referee served upon defendant in supplementary proceedings had not the seal of court to the clerk’s certificate. Held, that this furnished no ground for dismissing the proceedings, nor, after appearance and examination, could defendant object to the service.</p> <p>2. Levy upon goods was released by plaintiff because the goods had been previously mortgaged and the condition of the mortgage was broken. Held, that the levy was properly disposed of, and therefore the execution was not satisfied.</p> <p>■ 3. On the hearing of the referee’s report in supplementary proceedings’, the judge may appoint a receiver, without specific notice having been given that such appointment would then be applied for.’</p> <p>, 4. A receiver having been appointed in supplementary proceedings;, this court will assume, in the absence of all testimony upon the point, that the Circuit judge did his duty and ascertained that no f other supplementary proceedings were then pending against this ' defendant.</p> <p>5. The examination in supplementary proceedings having disclosed sufficient property in the debtor’s hands, subject to levy and sale, to satisfy the judgment, a receiver might nevertheless, under the present practice, be appointed; and when appointed, he should be the ; receiver of all the defendant’s property.</p> <p>6. It is the usual and better practice to require bonds from such receivers, but it is not essential.</p> <p>, 7. Section 321 of the code does not authorize a fee to plaintiff’s attorney, and the “fixed sum as costs” therein provided for must be fixed by the judge, and not by the clerk of court.</p> <p>8. Taxation of costs can be corrected only by motion, but an order of the judge directing an erroneous taxation, and a taxation thereunder, may be brought up by exception, and the error corrected.</p> <p>9. The mortgagee of the judgment debtor was not a necessary party to the proceedings, as the order did not interfere with the mortgaged p