Barnett v. Gottlieb

• Decision Date: 13 July 1916
• Docket Number: 9455.
• Citation: 89 S.E. 641,105 S.C. 67
• Parties: BARNETT v. GOTTLIEB.
• Court: South Carolina Supreme Court

89 S.E. 641

105 S.C. 67

BARNETT v. GOTTLIEB.

No. 9455.

Supreme Court of South Carolina

July 13, 1916

Appeal from Common Pleas Circuit Court of Marion County; Geo. E Prince and F. B. Gary, Judges.

Action by Nathan Barnett against Samuel L. Gottlieb. Judgment for defendant upon an order that plaintiff, a nonresident, give a bond for costs, and upon an order for a nonsuit, and plaintiff appeals. Affirmed.

Nathan Barnett, of Boston, Mass., for appellant.

Hoyt McMillan, of Mullins, for respondent.

GAGE J.

The plaintiff sued the defendant for an assault and battery; the jury found for the defendant; the verdict was set aside for error of law (98 S.C. 180, 82 S.E. 406); the case was tried again and the court (Judge Prince) directed the jury to find for the plaintiff, and the jury assessed the damages at $1,000; the court ordered a new trial, unless the defendant (meaning the plaintiff) should remit within 20 days from the date of the order (April, 10, 1915), so much as one-half the recovery the remission was made, but not in the 20 days limited and at what time it does not appear, a succeeding circuit court (Judge Gary) ordered the plaintiff, then a nonresident, to give bond for costs, the bond was not given, and the court (Judge Gary) ordered a nonsuit. This much of a tangled skein appears from the case in part directly and a part by inference.

There are nine exceptions, but the gist of the appeal is that the plaintiff had no notice of the order granting a new trial nisi, because the order was not made in open court, and the remission was made in due time under the circumstances.

The appeal is from the two said orders of Judge Gary. Yet the case sets out neither one of these orders, and we are not informed of the circumstances under which they were made.

The inference, from that which does appear, is that the plaintiff did not remit one-half the recovery within the time limited by Judge Prince; that the reason therefor was that he had changed his residence from this state to Massachusetts, and did not know of the terms of the order; and that neither he nor his counsel, Mr. H. E. Davis, of Wilcox & Wilcox, had knowledge or notice of Judge Prince's order; that the plaintiff did remit half the recovery as soon as he knew of the order to do so; that Judge Gary treated the order of Judge Prince as, under the circumstances, one for a new trial absolutely and so proceeded to dispose of the case.

After the verdict, plaintiff's counsel seems to have disappeared from the further conduct of the cause. Most of the case is made up of letters from Mr. Davis to the plaintiff and letters from the plaintiff to the defendant's attorney. There is no spoken or written word in the case from the defendant or from his attorney. The cause was argued here by the plaintiff himself, and by printed brief alone. There is no brief of the defendant's attorney.

1. If there was an unlawful failure to comply with Judge Prince's order--that is to say, an inexcusable failure to remit a part of the recovery within the time limited by the order--then Judge Gary was right to make the orders which he did make, for in that event the order of Judge Prince amounted to one for a new trial absolutely.

2. If it shall be assumed, for it is not decided, that the plaintiff had a legal right to reasonably and in due time explain his failure to comply with Judge Prince's order, that is to remit half the recovery within 20 days from the date of the order, yet the entire record discloses no excusing circumstances.

The cause was tried on April 5th, and the order for a new trial nisi was made 5 days thereafter. Notwithstanding that, there is some suggestion in the case that the order for a...