Ex parte Wessinger

• Decision Date: 10 November 1959
• Docket Number: No. 17582,17582
• Citation: 235 S.C. 239,111 S.E.2d 13
• Court: South Carolina Supreme Court
• Parties: Ex parte J. Ernest WESSINGER, Petitioner. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Plaintiff, v. J. Ernest WESSINGER, Respondent, in Which J. Ernest Wessinger is Appellant.

Page 13

111 S.E.2d 13

235 S.C. 239

Ex parte J. Ernest WESSINGER, Petitioner SOUTH CAROLINA STATE HIGHWAY DEPARTMENT, Plaintiff, v. J. Ernest WESSINGER, Respondent, in Which J. Ernest Wessinger is Appellant.

No. 17582.

Supreme Court of South Carolina.

Nov. 10, 1959.

Daniel R. McLeod, Atty. Gen., William H. Smith, Jr., Asst. Atty. Gen., for plaintiff.

Milton Kligman, Roy A. Powell, Columbia, for appellant.

STUKES, Chief Justice.

This is an appeal from refusal of a petition for permission to appeal, after time, from a condemnation award.

Such an appeal is allowed by Section 33-139 of the Code of 1952, as amended by Act No. 280 of 1953, 48 Stat. 355, which provides: 'Notice and grounds of appeal shall be served by mail or otherwise upon the State Highway Department within twenty days after the receipt of the resolution of the condemnation board.'

The condemnation was of farm land of appellant which is necessary for the construction of a section of U. S. Highway 76. Public hearing was held on December 12, 1956 by the condemnation board, at which appellant appeared, testified and was represented by counsel. By its resolution of that date $8,000 was awarded to appellant as damages. The resolution was sent to the appellant by registered mail and he signed the return receipt on December 18, 1956. A copy of it was mailed to his attorney on or about the same date. Appellant served by registered mail his notice and grounds of appeal upon the Highway Department on January 10, 1957, as shown by the return receipt card. It is seen that the service upon the department was two days too late to comply with the statute. On April 10, 1957 appellant served upon the department his petition to be allowed to appeal. The grounds of it were that:

1. The Highway Department and the Board of Condemnation were put on notice at the conclusion of the hearing of appellant's intention to appeal from the award by appellant's attorney, quoting from the petition, 'who advised the board that in the event an additional substantial amount (above $8,000) was not awarded to the Petitioner that said award would be appealed';

2. Section 10-465 of the Code is applicable and it provides, quoting, 'When the service is made by mail double the time required in cases of personal service shall be given';

3. No tender of the amount of the award was made to the petitioner which was in violation of Code Section 33-138 which provides: 'Upon the resolution of the condemnation board fixing the amount of the compensation and damages in any case, the State Highway Department shall tender payment, by check or otherwise, for the amount so fixed';

4. The award was inadequate under the evidence and if petitioner is not allowed to appeal he will be deprived of the right of trial by jury and constitutional due process; it would unjustly enrich the Highway Department and would not be in furtherance of justice.

The first ground cannot be sustained for two reasons. First, the statute, quoted in part above, clearly contemplates a written notice of appeal. How else could it be mailed? It was observed in Barnwell v. Marion, 56 S.C. 54, 33 S.E. 719, that oral notices of appeal are of no effect. A parallel provision of the Code of Civil Procedure, Sec. 10-461, requires, quoting, 'Notices shall be in writing' etc. Second, the contended oral notice was conditional at best, and referred to the future. The award had not then been made, much less the resolution served; there was no resolution (award) in existence from which to appeal at the time of the claimed oral notice of appeal.

Referring to ground 2, Sec. 10-465 is another provision of the Code of Civil Procedure which we do not presently decide is applicable to condemnation proceedings; we merely grant that it is for the purpose of this decision. The receipt by appellant of the resolution of the condemnation board (the words of Sec. 33-139, quoted above) cannot be regarded as service by mail and subject to the double-time statute (Sec. 10-465) because of the wording of the statute. It fixes the beginning of the running of the twenty-day limit at the receipt of the resolution. It is undisputed that appellant received and receipted for the resolution more than twenty days before he served upon the Department his notice and grounds of appeal. In this view, which we think is sound, he is not in position to invoke Sec. 10-465 which applies to service by mail. Soon after the adoption of the code it was held in Sullivan v. Speights, 12 S.C. 561, with reference to the service of exceptions (the equivalent of a notice of appeal) that the double-time provision in case of service by mail (now Sec. 10-465) is intended for the benefit of the party upon whom the service is made, and not the party making the service. In this case appellant is the latter. An analogous case to this is Priester v. Priester, 131 S.C. 284, 127 S.E. 18, where the double-time statute was held to be inapplicable to the written acknowledgment of service of notice of filing of the decree which was sent by mail. The acknowledgment of receipt made...