US Fid. & Guar. Co. v. City of Spartanburg

267 S.C. 210 (1976)

227 S.E.2d 188

UNITED STATES FIDELITY AND GUARANTY COMPANY, Respondent, v. CITY OF SPARTANBURG and Treasurer of Said City, Appellants.

20257

Supreme Court of South Carolina.

July 13, 1976.

Messrs. T.E. Walsh and William E. Walsh, of Gaines & Walsh, Spartanburg, for Appellants.

C. Pinckney Roberts, of Dial, Jennings, Windham, Thomas & Roberts, Columbia, for Respondent.

July 13, 1976.

Per Curiam:

United States Fidelity and Guaranty Company instituted three actions against the City of Spartanburg the Treasurer of said city, seeking to recover business license taxes for the years 1973, 1974 and 1975, which were paid under protest.

Appellants, pursuant to Circuit Court Rule 44, moved for summary judgment in each case on the ground that there was no genuine issue as to any material fact and the legal issues raised in the various complaints were settled by this Court in the case of United States Fidelity and Guaranty *211 Company v. City of Spartanburg, 263 S.C. 169, 209 S.E. (2d) 36 (1974).

The motions for summary judgment were heard by the Honorable Wade S. Weatherford, Jr., Resident Circuit Judge, and he passed a consolidated order in which he denied the motions and found that respondent was entitled to develop any factual issues which may be different from the issues concluded by the judgment in the 1971 and 1972 cases. This appeal is from the failure of the Circuit Court to grant the motions for summary judgment. We affirm.

In the case of Geiger v. Carolina Pool Equipment Distributors, Inc., 257 S.C. 113, 184 S.E. (2d) 446 (1971), we held that an order denying a motion for summary judgment is an interlocutory decision and to directly appealable. In support of this rule we cited 4 Am. Jur. (2d). Appeal and Error, § 104, at page 622, and also an annotation found in 15 A.L.R. (3d) 899. We reaffirmed the rule in Greenwich Savings Bank v. Jones, 261 S.C. 515, 201 S.E. (2d) 244 (1973); Medlin v. Grant,, 262 S.C. 185, 203 S.E. (2d) 426 (1974).

The appeal is dismissed.