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34 S.C.L. 280

Walker v. Bishop

Court of Appeals of South Carolina

Decided November 15, 1848

Court of Appeals of South Carolina · decided 1848-11-15

Befóte Richardson, J. at Fairfield, Fall Term, 1848. This Was an appeal from the decree of the Ordinary, refusing to allow costs to the appellants, who had been successful parties to a suit in his Court. The Circuit Judge dismissed the appeal, on the ground that there had been no appeal from the decision of the Ordinary, on the merits of the case: and the appellants now moved to reverse that decision.

Decided 1848-11-15

O’Neall, J.

¶1delivered the opinion of the Court.

¶2In the case of Thomson v. Farr, it is very well said by our brother Wardlaw, that “ costs are in the nature of penalties, and the statutes granting them have always been strictly construed.”z

¶3The 13th section of the Act of ’39, concerning the office and duties of Ordinary, provides: “ in all such appeals” (meaning appeals from the decision of the Ordinary,) “ the party, in whose favor final judgment may be pronounced by the Court of Appeals in Law or Equity, shall be entitled to tax and receive all his reasonable and proper costs and charges and expenses, in either of the said Courts, and also in the Court of Ordinary.”

¶4It is enough here to remark that the parties claiming costs, are not within this provision.

¶5There was no appeal from the decision of the Ordinary establishing the will. Unless there be an appeal, costs are not given by the Act, and hence the party cannot have them.

¶6The motion is dismissed.

The whole Court concurred.

¶7Motion refused.

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