Camden Inv. Co. v. Gibson

• Decision Date: 30 May 1944
• Docket Number: 15652.
• Parties: CAMDEN INV. CO. v. GIBSON.
• Court: South Carolina Supreme Court

30 S.E.2d 305

204 S.C. 513

CAMDEN INV. CO. v. GIBSON.

No. 15652.

Supreme Court of South Carolina

May 30, 1944

August Kohn, Jr. and Fred D. Townsend, both of Columbia, for appellant.

C T. Graydon, of Columbia, for respondent.

BAKER Chief Justice.

This action is one for damages brought by the appellant, owner of a certain store building in the City of Columbia, against the respondent, the lessee thereof, for alleged breach of lease contract. It was tried before Honorable A. W Holman, Judge of the Richland County Court and a jury. At the conclusion of the testimony, both appellant and respondent made motions for directed verdict in their respective favors. The motions were overruled by the trial Judge and the case was submitted to the jury. The jury returned a verdict in favor of the respondent. The appellant moved for a new trial and for judgment in its favor non obstante veredicto. These motions were overruled and the case comes to this Court on appeal from the judgment in favor of the respondent.

The respondent has also appealed from an order of the trial Judge settling the transcript of record. For an intelligent understanding of the matter, it is necessary to first pass upon this appeal. It challenges the correctness of the trial Judge's ruling that the transcript of record should contain the transcript of testimony and exhibits offered upon the trial of the case.

Appellant's attorneys served a proposed transcript of record and neglected to include as a part of the proceedings to be printed the official transcript of testimony, and the exhibits offered and received in evidence at the trial. Attorneys for respondent served notice of refusal to accept the transcript of record proposed by the appellant, and proposed a transcript of record containing a different statement, but providing for the printing of the same proceedings as set forth in appellant's proposed transcript. The day following the service of said notice, and within thirty days of the service of notice of appeal, appellant's attorneys disallowed the respondent's proposed amendments, gave notice that they would submit their proposed transcript to the trial Judge on a certain day and hour for settlement, and gave further notice that appellant "hereby amends its original proposed case and exceptions by inserting on page 5 thereon preceding the word 'order' the following, 'Here insert official transcript of testimony and exhibits offered and received in evidence at the trial."'

In due time the trial Judge made an order settling the transcript of record, in which he provided that there should be included, over the objection of respondent's attorneys, the official transcript of testimony and exhibits offered and received in evidence at the trial, holding in effect that this court could not pass upon the exceptions unless the proceedings in the trial court were before it, and that, regardless of his action, the appellant could, in an appendix, insert the transcript of testimony upon the trial and appeal from his refusal "to permit the amendment." It thus appears that the trial Judge, in effect, treated the appellant's notice to the effect that it amended the proposed transcript, as a motion to be permitted to so amend the transcript.

While no case has been cited and none has been found, in which the facts are identical, we think that it was appropriate, and within the power of the trial Judge, in settling the transcript of record to include the testimony and exhibits upon the trial of the case. Respondent does not question the trial court's power to permit an amendment, but rather the right of the appellant to amend as a matter of course. We think that the appellant's notice of amendment was, and should have been, considered by the trial Judge as a motion to permit an amendment, and that it was properly granted. It would be tantamount to denying appellant's right to appeal to hold that the testimony and exhibits were improperly allowed as a part of the transcript of record since the determination of the issues depends upon the testimony and exhibits. It is necessary that the rules of court and statutes be followed in perfecting an appeal, but it would be sacrificing...