Smith v. Southern Ry. Co.
| Citation | 95 S.E. 339,109 S.C. 152 |
| Decision Date | 11 March 1918 |
| Docket Number | 9922. |
| Parties | SMITH ET AL. v. SOUTHERN RY. CO. |
| Court | United States State Supreme Court of South Carolina |
Appeal from Common Pleas Circuit Court of Kershaw County.
Action by W. T. Smith and others, trading as the Camden Furniture Company, against the Southern Railway Company. Judgment in magistrate's court for plaintiff, and defendant appealed to the circuit court, where the appeal was docketed, and after three years was struck off, with leave to restore, and defendant moved to restore the case to the calendar. To review an order denying the motion, defendant appeals. Affirmed.
J Waties Thomas, of Columbia, for appellant.
W. B De Loach, of Camden, for respondents.
In May 1911, plaintiffs recovered judgment against defendant in the court of a magistrate for $36.33, damages to a shipment and freight charges thereon. Defendant appealed to the circuit court, and the appeal was duly docketed for hearing. It remained on the docket, without having been brought to hearing, until the fall term, 1914, when the presiding judge made this entry on the docket: "Strike off with leave to restore."
In January, 1915, plaintiffs' attorney, Hon. M. L. Smith was elected circuit judge, and appellant's attorney had no notice that any other attorney had been retained to represent plaintiffs. In March, 1916, appellant's attorney saw the entry made on the docket by the presiding judge at the fall term in 1914, "Strike off with leave to restore," and in January, 1917, he learned, for the first time, that another attorney had been employed to represent plaintiffs. Thereupon, at the March term, 1917, he moved the court to restore the case to the calendar. The court refused the motion, on the ground that appellant's attorney had not exercised due diligence in bringing the appeal to a hearing, and because he had delayed so long in making the motion to restore after the case had been stricken from the docket.
The order, "Strike off with leave to restore," is not to be construed, as appellant contends, as impliedly giving either party an absolute right to restore, on motion. That would make the order nugatory in effect, and the case might as well be left on the docket. But it is implied in the order that restoration rests in the sound discretion of the court, and therefore depends upon the character of the showing made. Counsel for appellant is mistaken in supposing that he had the right to wait until notice was given him that plaintiffs had employed another attorney to represent them. They had the right, if they saw fit, to rely upon the judgment in their favor without employing an attorney to argue the appeal. Respondents not infrequently do that in the circuit court and in this court. At any rate, they must be presumed to have known that the appeal was docketed for hearing, and that, unless they exercised due diligence in employing another attorney to represent them on hearing of the appeal, it might be heard in the absence of such representative. Of course in such a case the court would exercise discretion in proceeding with the hearing, or in continuing the case to give time for the employment of counsel, according to the circumstances. But appellant was the actor in the appeal, and it was his duty to prosecute it with due diligence and have it promptly disposed of.
Section 405 of the Code of Civil Procedure provides that when an appeal is duly docketed, "it shall stand for trial without any further notice." That section also shows that it was the intention of the lawmakers that such appeals should be disposed of promptly, for it provides that "if neither party bring it [the appeal] to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order, for cause shown." This has been construed by some to mean that such an appeal must be heard at the second term at all events, or be subject to dismissal; but this court has held, in several cases, that it was not the intention of the Legislature that an appeal should be dismissed without opportunity for a hearing, and that there is no presumption that such cases were called and opportunity for hearing given at the second term after docketing; for we know that, for lack of time and other reasons, it often happens that no opportunity for hearing is given. Therefore we have held that, before an appeal can be summarily dismissed for want of prosecution, it must appear that there has been opportunity for a hearing.
In Bell v. Pruit, 51 S.C. 344, 29 S.E. 5, an appeal was docketed...
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