Hyatt v. McBurney
| Citation | 17 S.C. 143 |
| Parties | HYATT v. MCBURNEY. |
| Decision Date | 17 April 1882 |
| Court | South Carolina Supreme Court |
1. Where a defendant gives notice of exceptions, for the purpose of appeal, to an intermediate decree, but not within the ten days prescribed by law, and takes no further steps to perfect an appeal, and the plaintiff brings up his appeal from this same decree, and it is heard and a final judgment afterwards rendered on Circuit, the defendant may then appeal from the final judgment and on such appeal ask a review of the intermediate decree so far as it affects the final judgment.
2. And this may be done even if defendant's notice had been given within the ten days.
3. This case distinguished from Pringle v. Sizer 7 S. C. 131.
4. The act of 1878 (16 Stat. 698) regulating appeals to the Supreme Court does not repeal Section 11 of the code, which authorizes this court on appeal from a final judgment to review any intermediate decree, not before appealed from necessarily affecting the judgment.
5. The act of 1878 regulates the mode and manner of appeals, but does not relate to the matter from which an appeal may be taken.
THIS is a motion to dismiss an appeal from a final judgment upon the ground that this appellant had given notice of appeal from an intermediate decree in the cause, but had failed to perfect his appeal, thereby waiving it. The notice which was claimed to be the notice of appeal from the intermediate decree was as follows:
Other facts are stated in the opinion.
Messrs. McCrady & Son , for the motion.
Messrs. A. G. McGrath and H. E. Young , contra.
In this case the plaintiff respondent instituted an action to foreclose a mortgage covering a tract of land in Charleston county claimed by the defendant Mrs. Caroline Carson by virtue of an alleged older mortgage and a sale thereunder through proceedings in the United States Court. The case was heard first by Judge Pressley in April, 1880. The main question at that hearing was whether the mortgage under which Mrs. Carson claimed had been satisfied.
This question had previously been made in the United States Court as between some of the parties, and had been there decided in favor of Mrs. Carson. But this plaintiff was not a party to that proceeding. This fact was recognized by the United States Court, and in the judgment which was there pronounced it was expressly declared that the rights of the plaintiff were not concluded thereby. This question then being an open question before Judge Pressley, on the hearing of the case he decided that Mrs. Carson's mortgage had been satisfied and that plaintiff's mortgage was the only lien upon the land. Judge Pressley, however, in deference to the judgment of the Supreme Court of the United States, declined at that stage of the case to order the foreclosure sought by the plaintiff, and instead thereof remanded the case to the master to inquire and report whether or not the plaintiff could, without much expense and delay, make her claim out of other property of her debtor, McBurney & Co. holding in abeyance the order of foreclosure in the mean time.
From this decree the plaintiff appealed, and Mrs. Carson gave notice of exceptions for the purpose of appeal; but this notice was not given within the ten days required, and Mrs. Carson afterwards concluded not to perfect her appeal, being satisfied with the general result of Judge Pressley's decree, or at least preferring to await the report of the master as to the matter referred to him, hoping that this report would release the land from the encumbrance of plaintiff's mortgage by throwing plaintiff on other property of McBurney & Co., and consequently leave the land in her possession. The plaintiff's appeal, however, was perfected and was heard at the last term of this court, upon which hearing this court, assuming the facts found by Judge Pressley to be true, to wit, that the mortgage of Mrs. Carson had been satisfied, and that there was no other lien upon the land than that of the plaintiff, adjudged upon these facts, that plaintiff was entitled to a judgment of foreclosure, and sent the case back to the Circuit Court for such judgment. 15 S. C. 393.
Under this state of facts, the case came up before Judge Kershaw at the last term of the Circuit Court for Charleston county, who, in accordance with the opinion of this court, gave the plaintiff a judgment of foreclosure and ordered the land to be sold in satisfaction of plaintiff's mortgage. From this judgment Mrs. Carson now appeals, and seeks to contest the questions of fact as to the satisfaction of the mortgage under which she claims found against her in the decree of Judge Pressley, and to which she was then willing to submit because the decree, notwithstanding the findings adverse to her therein, was in its general result satisfactory.
Mrs. Hyatt moves to dismiss this appeal upon two grounds:
First . Mrs. Carson having given notice of exceptions on September 20, 1880, for the purpose of appeal from the intermediate decree of Judge Pressley filed a short time before, and having failed to perfect her appeal by preparing a case, … the plaintiff contends that her appeal has been waived as to that decree, and that she cannot now renew it in such way as to contest the facts found against her in said decree.
Second . That the act of 1878 on the subject of appeals, which requires the appellant to give notice of his intent to appeal within ten days, … has repealed Section 11 of the code, under which an intermediate order or decree might be reviewed upon an appeal from a final decree; and consequently Mrs. Carson, having failed to perfect her former appeal under the notice which she then gave, has no right now to review the intermediate order of Judge Pressley by an appeal from the final decree of Judge Kershaw.
It appears from the statements in the brief that the notice of exceptions given by Mrs. Carson to the decree of Judge Pressley was not given within ten days after the filing of the decree. The decree seems to have been filed on September 3, 1880, and the notice was not given until September 20. There is nothing said as to whether Mrs. Carson had received written notice of the filing of the decree, but the attorneys of the plaintiff, on accepting service of her notice, incorporated into the acceptance a statement that they did not waive objection to the fact that the time of appeal had passed. We suppose then that Mrs. Carson had received notice of the filing of the decree, and that she failed to initiate her appeal within the ten days required, and consequently she had lost the right to appeal from the decree, as an intermediate order, at that time.
Such being the fact, it will not be necessary to consider the question as to what would have been the effect had her notice been in time, and no subsequent steps taken. Upon the facts as they exist in the case, the question of abandonment and waiver cannot arise. That question could become involved only where in a case some step had been taken which gave the party the right to proceed further, and without which further action the right gained by the first step would be forfeited or waived. But where the first step is without effect, the failure to follow it up is needless and harmless, as there can be no abandonment until a right attaches.
Here, assuming that Section 11 of the code is still of force, Mrs. Carson had the right to appeal from the decree of Judge Pressley as an intermediate order by giving notice within ten days after written notice of the filing of said decree, and had she given that notice within the required time her appeal would have been initiated; and then a failure on her part to take the next step necessary to perfect it would have amounted to a waiver as to the rights attached. But having failed to initiate the right to appeal from this decree as an intermediate order by notice within the time, her notice beyond the time was nugatory, and her failure to proceed further on that notice amounted to nothing.
We must look at the case, therefore, as an appeal from a final decree, and as if no appeal had been attempted by her from the intermediate decree. Considering the case in that aspect the important question is, Can she appeal from the judgment of Judge Kershaw as a final judgment, and on that appeal have the intermediate decree of Judge Pressley reviewed? The right to review intermediate decrees on appeal from final judgments is expressly provided for by Section 11 of the code, and unless...
To continue reading
Request your trial