Caston v. Brock

• Decision Date: 31 August 1880
• Docket Number: CASE No. 906.
• Citation: 14 S.C. 104
• Parties: CASTON v. BROCK.
• Court: South Carolina Supreme Court

14 S.C. 104

CASTON

v.BROCK.

CASE No. 906.

Supreme Court of South Carolina.

Aug. 31st, 1880.

1. An appeal from an order granting a new trial on the minutes dismissed, because the notice of appeal did not contain an assent on the part of appellant that if the order be affirmed judgment absolute should be rendered against him.

2. Punctuation allowed some force in construction, it being, in this case, strictly consistent with one of two senses, which were equally grammatical, and inconsistent with the other.

3. The terms bill of exceptions and exceptions taken, considered.

4. Application for leave to amend a notice of appeal must be in writing and on due notice.

5. Such amendment would not be allowed where the appeal was based upon the hearing at chambers of a motion for new trial upon the minutes, which was noticed at the same term and entered upon his docket by the presiding judge, but its hearing postponed by agreement beyond the adjournment of the term.

Before KERSHAW, J., Chesterfield, September, 1879.

Action by Robert T. Caston to recover from Mary A. Brock certain lots of land in the town of Cheraw. Verdict for defendant.Motion by plaintiff on minutes for a new trial, which the presiding judge, with consent of counsel on both sides, noted upon the docket in the following words: “Motion for a new trial to be argued by consent, at Marlboro'.'DDD'

At Marlboro' it was verbally agreed between counsel that the motion should be heard at Darlington during the succeeding term of the Circuit Court, written argument to be submitted by either counsel desiring.

About October 15th, 1879, defendant's counsel were notified, by letter, that the argument of plaintiff's counsel had been forwarded to the Hon. J. B. Kershaw, at Darlington, whereupon defendant's counsel wrote to plaintiff's counsel demanding a copy of the argument sent, or the points and authorities contained in it, in order that a reply might be framed thereto. On October ______, 1879, before the close of the Darlington court, plaintiff's counsel sent the points and authorities to defendant's counsel, in deference to said demand, but the same were not received till October 28th, 1879, after the close of the said Darlington term. Defendant's counsel then refused to consent further in the premises, or do anything to further the hearing and determination of the motion.

Plaintiff's counsel then served a notice upon defendant's counsel, that Judge Kershaw would be asked to render his decision before January 1st, ensuing. Defendant objected, upon the grounds that such motion could be heard and determined only at the term at which heard; that there was no agreement or waiver beyond the term at Darlington; and that defendant had not received plaintiff's points and authorities in time to enable him to reply at Darlington.

An order was granted by his Honor as of September Term, 1879, but dated December 31st, 1879, and filed January 5th, 1880, granting the motion for a new trial on the minutes. Defendant appealed, upon the ground that his Honor erred in granting the motion and overruling his objections. In his notice of appeal there was no assent that final judgment should be rendered against him in this court, if he failed in his appeal; and for such omission plaintiff moved to dismiss the appeal.Messrs. Dudley & Newton, for appellant.

Messrs. Prince & Pollock, contra.

The opinion of the court was delivered by

WILLARD, C. J.

This is an appeal from an order granting a new trial. A preliminary objection is taken to the appeal, on the ground that no assent on the part of the appellant is contained in the notice of appeal, to the effect that if the order be affirmed, judgment absolute shall be rendered against the appellant, in accordance with sub-division 2, Section 11, of the code, and that, as a consequence of such omission, the appeal is not effectual for any purpose and should be dismissed. To this objection the appellant replies that the order for a new trial, appealed from in the present case, was made upon a motion heard upon the minutes of the Circuit judge, and is not, therefore, an order granting a new trial on a case made or a bill of exceptions, within the meaning of the proviso in sub-division 2, Section 11.

That portion of sub-division 2, Section 11, directly involved, is as follows: “But no appeal to the Supreme Court from an order granting a new trial, on a case made or a bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that if the order be affirmed judgment absolute shall be rendered against the appellant.” It is essential to the understanding of the purpose of this proviso, affecting the power of the court to entertain such appeals, to read, in connection with the foregoing citation, the provisions that immediately follow it, viz.: “Upon every appeal from an order granting a new trial on a case made or on exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant.”

There are two possible readings of that part of Section 11 under immediate consideration. According to the first, no assent can be demanded unless the order appealed from was made upon a motion heard upon a case or bill of exceptions. This is the construction for which the appellant contends, urging that the order in question having been made upon the minutes of the judge, it was not a case in which the assent of the appellant in question could be demanded, such order not having been granted on a case or bill of exceptions. The other reading will be understood by inverting two members of the sentence, as follows: “ But no appeal to the Supreme Court, on a case made or bill of exceptions, from an order granting a new trial,” &c. The effect of this reading would be that all appeals from orders granting new trials would demand such assent on the part of the appellant, whether heard at the Circuit upon a case, with or without exceptions, or upon the minutes of the judge.

The grammatical construction of the language quoted, aided by the punctuation of the text of the code, as it appears in the general statutes, (page 564), admits, to say the least, the possibility of the reading last above indicated. The words, “on a case or bill of exceptions,” act as a condition or other qualification of some antecedent phrase. As such they do not, in a grammatical sense, necessarily qualify their immediate antecedent, so as to become a definition of the kind of order that is subject to the proviso under consideration; but they may, without forced construction, qualify the prior antecedent, in this sense having the effect of enlarging rather than narrowing the sense of that which they affect, by including all appeals from orders granting new trials, both such as are brought into the Appellate Court upon a case and upon a bill of exceptions. It is perfectly consistent that a member of a sentence, limiting the scope of a precedent, general direction should be followed by one giving the greatest amplitude to that direction consistently with such limitation; and had such been the intention of the legislature, the mode adopted is a proper and customary mode of giving expression to such intention.

Punctuation is the least reliable guide to the sense of a statute, but cannot properly be said to be without any force. In itself it is ordinarily insufficient to fix the sense of a statute where that is disputable, especially where the question is one of the force of a comma; but when the punctuation is strictly consistent with one of two senses, equally grammatical, and inconsistent with the other,...