Bell v. Pruit

• Decision Date: 21 February 1898
• Citation: 29 S.E. 5,51 S.C. 344
• Parties: BELL v. PRUIT.
• Court: South Carolina Supreme Court

29 S.E. 5

51 S.C. 344

BELL v. PRUIT.

Supreme Court of South Carolina

February 21, 1898

Appeal from common pleas circuit court of Abbeville county; R. C Watts, Judge.

Summons for debt by Jesse R. Bell against M. E. Pruit. From an order of the circuit court dismissing an appeal from a magistrate's court, defendant appeals. Affirmed.

D. H Magill, for appellant.

W. P Greene, for respondent.

JONES J.

The appeal in this case is from an order of the circuit court dismissing an appeal from a magistrate's court. The ground for dismissal stated in the order is that the case had been peremptorily called for two terms, and no answer made by the appellant or his attorney. The fourth, fifth, and sixth grounds of appeal will be noticed together, and they are as follows: "(4) Because it was error to dismiss the appeal from Magistrate Hollingsworth, on the motion of plaintiff's attorney, in the absence of defendant's attorney, without hearing and considering the exceptions and grounds of appeal. (5) Because his honor erred in dismissing said appeal, when the plaintiff was ready for a hearing, without hearing and considering the defendant's grounds of appeal. (6) Because his honor erred in holding that the case had been peremptorily called for two terms." From the record before us, it appears that the appeal from the magistrate was duly docketed in the court of common pleas for Abbeville county for the June term, 1896, and by consent of counsel was continued at that term; that at the January term, 1897, the case was continued, by order of the court, on account of the absence of defendant's attorney, who was in attendance as member of the legislature at Columbia; that at the June term, 1893, the case was regularly called during the term; and that the order appealed from was made on the last day of that term. The circuit court has the authority to summarily dismiss an appeal from a magistrate's court if neither party bring it to a hearing before the end of the second term. Section 366 of the Code of Civil Procedure provides: "If a return be made, the appeal may be brought to a hearing by either party. It shall be placed upon the calendar and continued thereon until finally disposed of. But if neither party bring it 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." The appeal had not been brought to a hearing by either party before the end of the second term, and the court had not continued the appeal, by special order, for cause shown. These conditions warranted a dismissal of the appeal for want of prosecution.

The first question raised is whether Magistrate Hollingsworth could exercise the powers of a magistrate, because, as alleged, he was not commissioned as such for any one of the particular places named in the act. The act approved December 24, 1888 (see Act 1888, p. 85), authorizes the governor to appoint 17 trial justices (now...