Crosswell v. Conn. Indem. Ass&n
| Decision Date | 18 May 1897 |
| Citation | 49 S.C. 374,27 S.E. 388 |
| Court | South Carolina Supreme Court |
| Parties | CROSSWELL et al. v. CONNECTICUT INDEMNITY ASS'N. |
Appeal—Dismissal—Filing Return — Default-Exceptions—Settlement—Relief against Mistake—Rule.
1. Under rule 1 of the supreme court (19 S. E. v.), providing that, if appellant shall not file the return within the prescribed time, respondent may, on affidavit that no extension has been granted, and the certificate of the clerk that no return has been filed, obtain from the clerk an order dismissing the appeal, it will be presumed that an order of dismissal was granted on the clerk's certificate, where the certificate was indorsed on the same sheet of paper, and bore the same date, as the order.
2. Rule 50 of the circuit court, providing that, where parties fail to agree on a "case, " it may be referred to the circuit judge for settlement, does not include "exceptions"; and a failure to file the exceptions in the circuit court, so that they can, within the prescribed time, be certified to the supreme court as a part of the return, is not excused by the fact that they were mistakenly submitted with the "case" for settlement by the judge, and are beyond the control of appellant.
3. Such failure, following due notice of inten tion to appeal, is within Code Civ. Proc. §§ 339, 349, providing that the supreme court may, in its discretion, and on such terms as may be just, relieve a party from the consequences of any omission in perfecting an appeal, arising from mistake or inadvertence.
4. Whenever the supreme court is satisfied that a party has, in good faith, given due notice of his intention to appeal, and has, through an honest mistake or excusable inadvertence, or from other cause beyond his control, omitted to take some step necessary to perfect his appeal, the court will relieve him on such terms as may seem to the court to be just, under the circumstances of the case.
Action by John Crosswell and Arthur Cross-well against the Connecticut Indemnity Association. Defendant's appeal was dismissed for failure to file the return within the prescribed time. On defendant's motion to reinstate the appeal. Granted.
John T. Seibels, for the motion.
Marion Moise, opposed.
This is a motion to reinstate an appeal dismissed by the clerk under rule 1 of this court (19 S. E. v.), upon the ground that the return was not filed within the prescribed time. The motion is based, first, upon the ground that the order of the clerk dismissing the appeal was not founded upon the evidence required by that rule, inasmuch as it is claimed that there was no certificate of the clerk that the return had not been filed prior to the order dismissing the appeal. This allegation is based upon a statement made in one of the affidavits based "upon information obtained from the said U. R. Brooks, Esq., " to that effect. This, being merely hearsay, cannot be accepted as competent testimony to establish the fact which it was offered to prove. Besides, it appears from the record before us that the certificate was indorsed upon the same sheet of paper, and bears the same date, as the order dismissing the appeal. We must, therefore, conclude from the testimony properly before us that the clerk granted the order dismissing the appeal upon the evidence required by the rule. We hold that there was no error on the part of the clerk in granting the order dismissing the appeal.
The appellant contends, secondly, that upon the showing made there was really no default in filing the return, and, if there was, such default was occasioned by an honest mistake and inadvertence; and upon that ground the appeal should be reinstated. We will first consider whether there was any default. It appears from the showing made that the time for serving the "case" and exceptions had been duly extended to 31st of December, 1896, on which day the proposed "case" and exceptions were duly served, to which certain amendments were proposed by respondents, and, counsel not being able to agree, the proposed "case" and exceptions, together with the proposed amendments, were submitted to the circuit judge before whom the case was tried, for settlement. After hearing counsel for the respective parties, the circuit judge reservedhis decision, and has not, as...
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Priester v. Southern Ry. Co
...not contain. He certainly had authority to settle the case, but not the exceptions. This principle is well stated in Crosswell v. Association, 49 S. C. 374, 27 S. E. 388: "It is true that the proper practice is to furnish the Circuit Judge with a copy of the exceptions, in order that he may......
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Priester v. Southern R. Co.
... ... exceptions. This principle is well stated in Crosswell v ... Association, 49 S.C. 374, 27 S.E. 388: ... "It ... ...
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Rylee v. Marett
... ... It is true ... this Court, in the case of Crosswell v. Association, ... 49 S.C. 374, 27 S.E. 388, in laying down the rule for ... ...
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State v. Cottingham
...See publication of it in 2 Code of 1912, page 719, and the revised form in Code of Procedure, 1922, page 687; and Crosswell v. Indemnity Ass'n, 49 S.C. 374, 27 S.E. 388. An intermediate (1916) form of the rule, requiring four days' notice of motion before the clerk to dismiss, which has sin......