Berry v. Zahler

Decision Date23 August 1951
Docket NumberNo. 16535,16535
Citation66 S.E.2d 459,220 S.C. 86
PartiesBERRY v. ZAHLER et ux.
CourtSouth Carolina Supreme Court

Colin S. Monteith, Columbia, for appellant.

Baker & Baker, Columbia, for respondent.

STUKES, Justice.

The respondent in this appeal brought an ejectment proceeding in a magistrate's court against appellants for the possession of a residence in the City of Columbia upon the allegation that they were holding over after the expiration of their lease. The tenants made return, appeared personally and by counsel and objected to parol testimony relating to the terms of the lease and purporting to prove notices to vacate, but the magistrate overruled the objections and issued order of ejectment. The tenants appealed to the Court of Common Pleas which reversed the order of the magistrate and remanded the proceeding to him for a new trial. The tenants thereupon appealed to this court upon the contention of error by the lower court in refusing to dismiss the proceeding rather than remand it for another trial. In their brief is the statement that since the trial before the magistrate they have vacated the premises and delivered possession to the landlord. Under these circumstances, the issue, which was the right to possession of the premises, has become moot, and the appeal will not be considered.

The court does not concern itself with moot or speculative questions. The rule has been frequently applied. Wallingford & Russell v. Benson, memorandum decision reported in 17 S.C. 591, is an example. There was an appeal from an order refusing a motion to vacate an order of arrest, but the bond of appellant was voluntarily cancelled by respondent during the pendency of the appeal, and it was dismissed. In Cantwell v. Williams, 35 S.C. 602, 14 S.E. 549, 550, the issue was the right of Cantwell to the office of county supervisor. After the appeal was docketed a new appointment was made under the law. The appeal was dismissed and the court said: 'It has also been long settled law in this State that this court cannot consider merely speculative questions, and give judgment upon disputed points of law. Our duty is to pronounce practical judgments, to settle and determine the rights of parties. Ex parte Pereira, 6 Rich.Law 150; State v. Gathers, 15 S.C. 372. See, also, United States v. Boutwell, 17 Wall. 607 . It is evident that there is no longer any practical question in this case, and before the court, and that the court could not, therefore hear and determine the merits; only speculative questions being now involved.' Wright v. City of Columbia, 77 S.C. 416, 57 S.E. 1096, 1097, was a suit for injunction against the obstruction of a street, and the alleged nuisance was abated pending appeal. The latter was dismissed with the following comment: 'The question whether the plaintiff is entitled to an injunction is now merely speculative, and there would be no practical benefit to the plaintiff in reversing the said order, even if this court should conclude that there was error.' In Burgess v. Crumpton, 93 S.C. 562, 77 S.E. 356, it appeared that pending the appeal from a judgment for plaintiff, the defendant, who was appellant, successfully moved in the circuit court for new trial on after-discovered evidence, which was granted and the new trial resulted in judgment for the defendant, from which no appeal was taken; the appeal was dismissed. Davis v. Atlantic Coast Line R. Co., 106...

To continue reading

Request your trial
17 cases
  • Sloan v. Greenville County
    • United States
    • South Carolina Court of Appeals
    • December 8, 2003
    ...because the questions involved were of such wide concern, both to law enforcement personnel and to the public); Berry v. Zahler, 220 S.C. 86, 89, 66 S.E.2d 459, 461 (1951) (holding the question of public interest originally encompassed in an action should be decided for future The general r......
  • CAFE v. SC DEPT. OF LABOR, LICENSING
    • United States
    • South Carolina Court of Appeals
    • October 25, 1999
    ...because the questions involved were of such wide concern, both to law enforcement personnel and to the public); Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459 (1951) (holding that questions of public interest originally encompassed in an action should be decided for future guidance); Ashmore v......
  • Baird v. Charleston County
    • United States
    • South Carolina Supreme Court
    • January 18, 1999
    ...because the questions involved were of such wide concern, both to law enforcement personnel and to the public); Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459 (1951) (holding that questions of public interest originally encompassed in an action should be decided for future guidance); Ashmore v......
  • Curtis v. State
    • United States
    • South Carolina Supreme Court
    • July 17, 2001
    ...and manifest urgency to establish a rule for future conduct in matters of important public interest. See generally Berry v. Zahler, 220 S.C. 86, 66 S.E.2d 459 (1951) (the court recognized that questions of public interest originally encompassed in an action should be decided for future guid......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT