Bond v. Corbin

• Decision Date: 24 March 1904
• Citation: 47 S.E. 374,68 S.C. 294
• Parties: BOND v. CORBIN et al.
• Court: South Carolina Supreme Court

47 S.E. 374

68 S.C. 294

BOND v. CORBIN et al.

Supreme Court of South Carolina

March 24, 1904

Appeal from Common Pleas Circuit Court of Oconee County; Watts Judge.

Action by J. A. Bond against W. B. F. Corbin and J. T. McKinney. From an order dismissing case for failure of plaintiff to attend and prosecute, plaintiff appeals. Affirmed.

J. R Earle and Stribling & Herndon, for appellant. Jaynes & Shelor, for respondents.

POPE C.J.

This action in the court of common pleas for Oconee county, in this state, was begun May 14, 1900. A trial was had at the May, 1902, term of court, and resulted in a mistrial. Again the cause was called for trial at the November term, 1902 when the following circumstances were brought to the attention of his honor Richard C. Watts, as presiding judge That this cause was at the head of the docket, being cause No. 1 on docket No. 1. That, by agreement of counsel on both sides, it was fixed for trial on Thursday morning. At the hour of trial, that plaintiff failed to appear. That Mr. J. R. Earle had written plaintiff, his client, when the cause would be called for trial, and that no answer had been received, although the plaintiff lived at Pelzer, in Anderson county, which is an adjoining county to Oconee county. The presiding judge postponed the cause until 3 o'clock on Thursday afternoon. Again the plaintiff failed to be in attendance upon the court. That the defendants, with their witnesses, were present in court, and demanded a trial. The presiding judge again continued the further hearing until Friday morning; stating that, if the plaintiff failed to appear, he would dismiss the cause for want of prosecution if the defendants still demanded a trial. That on Friday morning, when the court assembled, the plaintiff still failed to appear, but had sent this telegram to his attorney: "To J. R. Earle, Walhalla, S. C.: Will come tomorrow. Will try to be there by noon. J. A Bond." The defendants demanded their right of trial. That thereupon the presiding judge granted the following order: "Upon the call of the above-named action for trial, and the defendants announcing themselves ready for trial, and the plaintiff not being present, now, on motion of Jaynes & Shelor, defendants' attorneys, it is ordered that plaintiff be, and is hereby, nonsuited." In the afternoon of that day (the 7th day of November, 1902) the plaintiff appeared in person, and thereafter during the term of court a motion was made to vacate the foregoing order, and affidavits pro and con were filed. The circuit judge refused the motion. An appeal was then taken from the order of nonsuit, as well as from the order refusing to vacate the same, on these grounds: "(1) For it was error on the part of the presiding judge to order complaint dismissed and a nonsuit entered before the end of the term, and before jurors were dismissed, but his honor should have ordered that the case be passed over, and that it lose its place on the docket, but the case remain on the docket at least until the jurors were dismissed; there being no motion to continue the case beyond the term. (2) For that it was error on the part of the presiding judge to dismiss the complaint and order a nonsuit for want of prosecution, no notice of such motion having been given to plaintiff. (3) For that it was error on the part of the presiding judge to hold that the affidavits furnished do not present such a showing as would entitle plaintiff to have the order rescinded, and to order and adjudge that the motion to rescind be refused, but his honor should...