The Newberry herald and news. (Newberry, S.C.) 1884-1903, 1891-12-09
THE BANK CASE AGAIN.
Judge Hudson Files Decision Declaring
His Former Decision Imperative
The Writ of Mandamus
Issued.

Tie Newberry Bank case has taken
i Aew turn. Judge Hudson has filed
another order. He finds he Was mis-
taken and acknowledges his error in
a manly way. The writ of mandamus,
in accordance With his original decision,
requiring the Auditor to change bis tax
duplicates and tax lists, has been issued
and was yesterday afternoon served by
the Sheriff:
The Herald and News called upon
Auditor Cromer yesterday afternoon,
soon after the service of the writ, and
asked him what he was going to do
about it. Auditor Cromer Said he was
too busy thinking about it to give rs
yet any opinion on the subject.
Treasurer Boyd says the Auditor
cannot have his book or make any
changes in the taxes charged there
for the amount of the reduction.
He has given a receipt for the total
amount Of the taxes charged on his
book and if the charge against the
bank is reduced, he is still responsible
for the amount of the reduction unless
he can have the recei pit that he has al
ready given changed to correspond
with the amount Of the reduction. 1t
is an interesting question and the end
probably is not yet.
The Clerk Of Court yesterday notified
the Acknowledgement by telegram OF
the order before the writ of rnandanlus
was issued.
Below we give the decision of Judge
Hudson and also the writ of manda-
mus served upon the Auditor:
JUDGE HUDsoN's DECISION.
On the 18th day Of November last,
while holding the Court Of Common
Pleas for the County Of Newberry, l
heard this application for a writ Of
mandamus, to compel the Auditor Of
the County, w. c. Cronler, to restore
to his tax list and duplicate the assess
ment of the property OF the Bank Of
NeWberry, as lawfully fixed by the
county boards and. afterwards increas-
ed upon the order of the Comptroller
General.
The prayer of the petitioning bank
was granted and final judgment signed,
directing the writ to issue. / announc-
ed my reasons for this judgment orally
and reserveI time to reduce the same
to writing. Soon thereafter Court
was adjourned sine die and I started
for home. On the morning OF Novem-
Der %, at Sumter, as l was about to
take the hack for the depot, was met
by D. a. Townsend, Esq, Assistant
Acknowledgement, with notice of ap-
peal and application for al order stay
ing the execution of the final Judgment
of November IS, pending the appeal,
He stated that in his opinion the notice
of appeal operated a stay Of execution,
but as there might he question upon
this point the Acknowledgement pre-
ferred an order from me. 1t struck me
at the time that noticeof appeal stayed
further proceedings below, and without
hesitation and without doubling for a
moment, 1 signed the order and hast
ened to the train. No statutes were
asked for and no argument was made,
as none was deemed necessary. In the
hurry of the moment l signed what l
regarded a superfuous, but harmless,
order under the view took Of the pro-
visions ot the Code, and the amend
ment of 1889, relying upon my recol.
lection of these Acts, not having them
before me.
It is now moved before me by the
attorney for the bank to rescind my
order of November 20. upon the ground
that it was granted without notice of
the motion, and without proof of facts
going to show the defendant to he en-
titled to it; and upon the further
ground that under section 452 Of the
code, proceedings in manda mus are not
affected by sections 345 and 357 of the
Code in so far as stay OF proceedings
pending appeal is concerned, nor by
the act of 1889 amending section 356.
After hearing argument upon this
motion, and after examining the stat
utes, 1 am satisfied that l was in error
in granting the stay of executions Of
tinal judgment, under v,ear misappre-
hension of the statutes regulating ap-
peals to the Supreme Court.
Section 452 of the CUde is not affected
by the Act of 1889, volume %, page, $50
statutes at large. This Act is merely
Of sections 345 and $50; and
in no manner affects section 452. So
that proceedings i'll mdndanaus and
prohibition still remain unaffected hy
the chapter regulating appeals to the
Supleme Court. The wisdom Of ex-
judgments in such cases from
the operation of section $50 is manifest,
because ordinarily stay Of judgment
in mandamus or prohibition pending
appeal would destroy the remedy, or
render it nugatory.
The case under consideration is a
illustration Of the fruitlessness
of the judgment against the Auditor if
the notice of appeal operates stay, or
if my order of Noveln Der Goth is to stand,
because before the appeal is perfected
and heard by the Supreme Court, the
Treasurer Of Newberry will have en-
forced the payment Of the illegally
tax, and the fruits Of the
Judgment will have been lost to the
bank. In signing the order at Sumter
l did not regard it an act of judicial
but simply an ACT Of compi-
ance with the statute. In this | was in
error. lift is to be regarded as an act
Of Judicial discretion, it is very clear
that it was discretion improvidently
and Improperly exercised, being done
upon an ex parte application and with
out atfidavits Of facts and circumstances
showing the respondent to be entitled
to the stay. 1t is pos ble if not proba-
bic that the order may deprive the
bank Of the benefit OF the order for the
writ Of mandamus.
There is to my mind more fatal OBJ
lection to my order of November 20,
than any which have been urged, and
,bat is the question of Jurisdiction.
| had ceased to hold the Courts of
he Seventh Circuit. and of course had
40 jurisdiction to Sign an order affect
ug a final judgment OF any court in
hat circui.. In this cas- | had ren-
iered the final judgment and placed
t on file.
The fact that I had reserved further
line in which to reduce to writing the
'easons which moved me to render the
Judgment did not give me further con-
rol of the case. When Judge has