Deal v. Deal

• Decision Date: 17 March 1910
• Citation: 67 S.E. 241,85 S.C. 262
• Parties: DEAL v. DEAL et al.
• Court: South Carolina Supreme Court

67 S.E. 241

85 S.C. 262

DEAL v. DEAL et al.

Supreme Court of South Carolina

March 17, 1910

Appeal from Common Pleas Circuit Court of Richland County; J. C Klugh, Judge.

Action by Mary L. Deal against Margaret E. Deal and another. Judgment for plaintiff, and, from an order extending the time for defendants to serve their case and exceptions on appeal plaintiff appeals. Appeal dismissed.

Hunter A. Gibbes, for appellant. James S. Verner, for respondents.

HYDRICK J.

A verdict was rendered in favor of the plaintiff and against the defendants on May 5, 1909. By special order of the court the plaintiff was allowed to enter up judgment on the verdict during the term, which was done on May 18, 1909. On the same day, defendants served notice of intention to appeal to this court. On June 14, 1909, defendants served on plaintiff's attorney notice of a motion to be heard on June 18, 1909, by his honor, Judge Klugh, the judge who heard the cause, to extend the time for the service of the case and exceptions. The motion was resisted on the ground that the time for the service of the case and exceptions had already expired, and therefore the judge had no jurisdiction to grant the order.

Section 348 of the Code of Civil Procedure provides: "The time for taking any step or proceeding in the preparation and perfection of appeals from the circuit courts to the Supreme Court, as now prescribed by law, may be extended by the judge who heard the cause, or by any one of the justices of the Supreme Court, upon four days' notice of such motion being first given to the opposite party, except the time of giving notice of appeal to the opposite party." It has been held that, after the time for the service of the case and exceptions has expired, the judge has no jurisdiction to extend the time. Stribling v. Johns, 16 S.C. 112; Tribble v. Poore, 28 S.C. 565, 6 S.E. 577. Section 345 of the Code is, so far as pertinent, as follows: "In every appeal to the Supreme Court from an order, decree or judgment granted or rendered at chambers from which an appeal may he taken to the Supreme Court, the appellant or his attorney shall, within ten days after written notice that such order has been granted, or decree or judgment rendered give notice to the opposite party or his attorney of his intention to appeal; and in all other appeals to the Supreme Court the appellant or his attorney shall, within ten days after the rising of the circuit court, give like notice of his intention to appeal to the opposite party or his attorney, and within thirty days after such notice the appellant or his attorney shall prepare a case with exceptions and serve them on the opposite party or his attorney," etc. Under this section his Honor held that the time for service of the case and exceptions, when the notice of appeal was served before the rising of the court, began to run on the first day after the...