Barnwell v. Marion

• Decision Date: 22 July 1899
• Citation: 33 S.E. 719,56 S.C. 54
• Parties: BARNWELL et al. v. MARION.
• Court: South Carolina Supreme Court

33 S.E. 719

56 S.C. 54

BARNWELL et al. v. MARION.

Supreme Court of South Carolina

July 22, 1899

Appeal from common pleas circuit court of Charleston county; J. C Klugh, Judge.

Action by Joseph W. Barnwell, as trustee and individually, and as agent and guardian, and Ann Joseph Wilson and Ellen F. Haune against Sophia Frances Shepherd Marion. From an order allowing the filing of an answer, plaintiffs appeal. Affirmed.

Langdon Cheves and Jos. W. Barnwell, for appellants.

Bryan & Bryan, for respondent.

POPE J.

The character of the cause of action of the plaintiffs against defendant is fully set forth in the judgment of this court on another branch of this case, and is found in 54 S.C. 223, 32 S.E 313. By Judge Buchanan's order, the defendant was allowed 20 days from its date to file an answer. After the lapse of say 10 days, notice of appeal from the order of Judge Buchanan was served by the defendant. This court sustained the circuit judge. The remittitur reached the circuit court on the 25th day of February, 1899. On the 16th day of March, 1899, the defendant tendered its answer to the plaintiffs' attorney. Its service was refused by plaintiffs' attorney, because, as he contended, more than 20 days had expired, by counting the 11 days before appeal was taken, and allowing 9 other days after remittitur reached the circuit court. Judge Klugh held that the defendant had 20 days to answer after the remittitur from this court was filed in the circuit court. An appeal is taken by plaintiffs from Judge Klugh's order.

As is suggested by the appellants, this is the first time such a question has reached this court. Our opinion is that the circuit judge--Judge Klugh--is right. It seems to us that when an appeal was taken from Judge Buchanan's order, such appeal related back to the date of such order. In effect, the appeal denied life to such an order from its very creation,--the date of its signature. Such order of Judge Buchanan never had any vitality imparted to it, after the appeal was taken from it, until the date at which the remittitur from the supreme court reached the court of common pleas for Charleston county. Now, if the order of Judge Buchanan, as a valid order, only began to run from the 25th day of February, 1899, the day on which it was filed by the circuit court or court of common pleas at Charleston county, then the defendant had a valid legal right to file her answer at any time...