Baker v. Irvine

• Decision Date: 20 January 1902
• Citation: 40 S.E. 672,62 S.C. 293
• Parties: BAKER et al. v. IRVINE (three cases).
• Court: South Carolina Supreme Court

40 S.E. 672

62 S.C. 293

BAKER et al. v. IRVINE (three cases).

Supreme Court of South Carolina

January 20, 1902

Appeals from common pleas circuit court of Greenville county; Klugh Judge.

Actions by J. A. and W. C. Baker against W. M. Irvine, and by J. A Baker and by W. C. Baker against the same defendant. From orders of the circuit court reversing judgment of magistrates for plaintiffs, they appeal. Reversed.

Blythe & Blythe, for appellants. Carey & McCullough, B. M. Shuman and Adam C. Welborn, for appellee.

GARY A. J.

Before proceeding to consider the exceptions, there is a preliminary question to be determined. The appellants, after notice, made a motion for an order amending the "case" in the following particulars: "(1) By striking out of the said 'case' all after the word 'respondents,' on page 18, folio 72, down to and including the word 'attached,' on page 20, folio 78, upon the ground that the same was inserted in the said 'case' by mistake and without authority, the same having been disallowed by the order of the circuit judge settling the 'case.' (2) By inserting in said 'case,' on page 14, folio 56, after the word 'county' and before the words 'those appeals,' the following." Then follows substantially a statement of the facts set out in these cases when they were heard on former appeals to this court, and which are reported in 61 S.C. 114-124, 39 S.E 252, 966, 967.

1. We will consider the grounds of the motion in regular order, and first determine whether that part of the record which, it is alleged, was inserted by mistake and contrary to the order of the circuit judge settling the cases, should be struck out. The respondent's tenth proposed amendment to the "case" was as follows: "Add the following to your proposed case: On the 30th of August, 1901, the plaintiffs' attorneys accepted service of the following notice (here insert defendant's notice of intention to appeal to sustain judgment). Thereafter, on September 25, 1901, plaintiffs' attorneys accepted service of the following (here insert defendant's exceptions and additional grounds)." In his order settling the case his honor, the circuit judge, says "that all the tenth amendment be disallowed except so much thereof as proposes to add to the proposed case the service of the notice of motion to sustain the judgment of the circuit court upon additional grounds, together with the additional grounds numbered 1, 2, 3, and 4, as set out on page 3 of the defendant's exceptions, and that so much thereof be, and the same hereby is, allowed." That part of the "case" which the plaintiffs move to strike out is not found on page 3 of the defendant's exceptions, and therefore was not properly inserted in the record, and should be struck out.

We will next consider whether the statement of the facts set out in the second ground of the motion should be inserted in the "case." The court unquestionably has the power to require conformity to the order of the circuit court settling a case for appeal to the supreme court, and likewise has the power to remand the case to the circuit court for further settlement, when, in its opinion, the ends of justice require such action; but it has not the power, independently of the order of the circuit court, to say what the "case" shall contain. If, therefore, this court was of the opinion that the said facts should be incorporated in the "case," it would refer the matter to the circuit court for further settlement. The views, however, hereinafter expressed, render such order unnecessary.

We now come to a consideration of the appellants' exceptions. The facts are thus stated in the magistrate's report of the trials: "The summons in each of the above-stated cases was issued by me on the 2d day of November, 1899, and was personally served on the defendant on the same day. On the day specified in the said summons, to wit on the 23d day of November, 1899, plaintiffs and their attorneys appeared before me and announced themselves ready for trial. Before the cases were called for trial, J. A. McCollough, Esq., of the city of Greenville, Greenville county, S. C., called me to the telephone near my office at Athens, Greenville county, S. C., and stated to me that he was employed by the defendant to represent him in these cases, but that he was engaged in a case in the court of common pleas at Greenville, and could not come on that day. He further stated that he desired to put in a general denial in each case. When the cases were called for trial, I stated to plaintiffs' attorneys the message I had received from Mr. McCollough, and asked them if they were willing for the cases to be continued. They refused to consent to a continuance, and demanded that they be allowed to introduce their testimony and take judgment in each case. I declined to do this, and continued the case until the 7th December, 1899, and gave notice of the time so fixed to the defendant. On that day the cases were again called, and by consent of counsel were all taken up together. Messrs. Blythe & Blythe appeared for the plaintiffs, and Messrs. J. A. Mooney and W. G. Sirrine appeared for the defendant. Plaintiffs again claimed their right to prove their claims in each case and take judgment as by default, upon the ground that no answer had been made by the defendant in any of the cases within the time allowed by law. I overruled this motion, and plaintiffs excepted. Defendant's attorneys then moved that the plaintiffs be required to amend their complaints in certain particulars upon the grounds taken down by me at...