Clark Bros. v. Wimberly
| Decision Date | 25 January 1886 |
| Citation | 24 S.C. 138 |
| Parties | CLARK BROS. v. WIMBERLY. |
| Court | South Carolina Supreme Court |
1. A motion to dismiss an appeal was granted, counsel for appellant appearing and resisting the motion. On motion by appellant to reinstate this appeal on the docket held , that judgment having already been rendered dismissing the appeal, the matter is res judicata. Hyrne v. Erwin , 22 S.C. 587.
2. Failure to file affidavit of inadvertence in resistance of the motion to dismiss cannot, after judgment rendered, be relieved against under section 349 of the Code of Procedure as there is no appeal pending or to be perfected after judgment of dismissal.
3. Appellant having been represented by counsel when the appeal was dismissed, section 195 of the Code does not apply. Quere : Does this section apply to the Supreme Court in any case?
4. A court of justice must always bear in mind that both parties to a cause have rights, and that unlimited indulgence to one will operate injustice to the other.
Appellant having been represented by counsel when the appeal was dismissed, section 195 of the Code (See Code 1942, § 495) does not apply. Quaere: Does this section apply to the Supreme Court in any case?
Messrs. J. C. Davant and F. W. Fickling for the motion.
Mr. J. J. Brown , contra.
In this case a motion to dismiss the appeal on the ground that appellants had failed to serve their exceptions within the time required by law was heard by this court on November 24 1885. At that hearing, the motion to dismiss was resisted by counsel representing the appellants upon the ground that the omission to serve the exceptions within the prescribed time was owing to the inadvertence of the counsel of record for appellants, but no motion to amend and no evidence that the omission occurred through inadvertence was presented to the court. It is true that counsel then representing appellants did ask, verbally, that the court would allow an amendment, but it did not then appear that any notice of a motion to amend had been served upon the attorney for appellants, and no affidavit of inadvertence was either served or presented. Under these circumstances, this court had no other alternative but to dismiss the appeal, and an order to that effect was accordingly entered.
On January 2, 1886, counsel for appellants duly served respondents' counsel with a notice of motion to rescind the former order dismissing the appeal and to restore the case to the docket for hearing, accompanied by affidavits setting forth fully and clearly the circumstances under which the omission to serve the exceptions occurred, and showing that it was through inadvertence. In the affidavit of the counsel of record for appellants, it is not only stated that the omission to serve the exceptions occurred through his inadvertence, but also that he " misapprehended the necessity for and requirement of an affidavit of inadvertence upon the motion of respondents' attorney to dismiss the appeal, and by inadvertence omitted to file the motion to amend and the affidavit of inadvertence," and also states that he was unavoidably absent when the motion to dismiss the appeal was heard, and hence, as it appears from the other affidavit submitted, the case was turned over to another member of the bar, who did represent the appellants at the hearing of the motion to dismiss the appeal.
The motion to restore the case was resisted by counsel for respondents, upon the ground that this court having already rendered judgment dismissing the appeal, the matter is res adjudicata ; and in support of this motion cited the case of Hyrne v. Erwin (22 S.C. 587) which seems to us conclusive of the question. In that case the appeal was dismissed by the clerk for failure to file the return; and afterwards, after regular notice, the case was, on motion of the appellant, restored to the docket, respondent having failed to appear and resist sad motion. The respondent afterwards moved to dismiss the appeal so restored, which motion was dismissed, the court holding that, if the default of appellant occurred since the appeal was restored, it might be considered, but it is based entirely on alleged omissions which occurred before the restoration, and which could and should have been interposed when the motion to restore was heard. The respondent, however, failed to appear when the motion to restore was heard, and the judgment of ...
To continue reading
Request your trial