Harlan v. Satterfield Const. Co.

• Decision Date: 06 October 1971
• Docket Number: No. 19295,19295
• Citation: 184 S.E.2d 339,257 S.C. 69
• Court: South Carolina Supreme Court
• Parties: Ann M. HARLAN, Plaintiff-Respondent-Appellant, v. SATTERFIELD CONSTRUCTION COMPANY, Inc., Defendant-Appellant-Respondent.

Page 339

184 S.E.2d 339

257 S.C. 69

Ann M. HARLAN, Plaintiff-Respondent-Appellant, v. SATTERFIELD CONSTRUCTION COMPANY, Inc.,

Defendant-Appellant-Respondent.

No. 19295.

Supreme Court of South Carolina.

Oct. 6, 1971.

W. H. Arnold, of Love, Thornton, Arnold & Thomason, Greenville, and G. Miller McCuen, Laurens, for defendant-appellant-respondent.

W. Paul Culbertson, Laurens, for plaintiff-respondent-appellant.

BRAILSFORD, Justice:

Following a verdict for plaintiff in this personal injury action, which was the last case for trial at the regular April, 1970, term of the Civil and Family Court of Laurens, counsel for defendant orally moved for judgment Non obstante veredicto or, alternatively, for a new trial. He requested that the court reporter transcribe part of the testimony, and that he be allowed to 'get up (his) grounds' when the transcript became available and to state and argue the motions at a later date. Counsel for plaintiff objected vigorously, insisting that, at least, the grounds upon which defendant proposed to rest its motions be stated before adjournment. The court overruled plaintiff's objections and instructed the reporter to prepare a partial transcript, whereupon plaintiff participated in a discussion which culminated in 'agreement' that the entire record be transcribed.

On April 21, during the second week following the trial, plaintiff served notice of a motion to dismiss defendant's motions upon the ground that the court had lost jurisdiction to entertain them. Pending hearing of this motion, the transcript was completed on October 13, 1970, whereupon defendant prepared and served some fifteen grounds as bases for its alternative motions. After a hearing on October 23, the judge overruled plaintiff's motion and those of the defendant. Both parties have appealed from the refusal of their respective motions. Under our view of the case, we need consider only plaintiff's appeal, which is upon one exception charging error in the court's refusal to hold that it had lost jurisdiction of defendant's alternative motions, which were neither heard nor marked heard by consent before the rising of the court following the trial.

Circuit Court Rule 79 requires that a motion for judgment notwithstanding the verdict be made 'before the adjournment of the court in which the case was tried,' and Section 10--1461, Code of 1962, imposes the same requirement upon a motion for a new trial based upon trial error. Parks v. Blue Ridge Lumber Co., 170 S.C. 217, 170 S.E. 156 (1933); Altman v. Efird Bros. Co., 180 S.C. 205, 185 S.E. 543 (1936). Such motions when heard at the trial term may be decided afterward, Calhoun v. Port Royal & W. C. Railway Company, 42 S.C. 132, 20 S.E. 30 (1894); and, under our settled practice, with the consent or acquiescence of the opposing party, the trial judge may retain jurisdiction beyond the term by timely nothing the motions and marking them 'heard.' King v. Western Union Telegraph Co., 167 S.C. 500, 166 S.E. 629 (1932). '(I)n order for the trial court to retain jurisdiction of the matter after sine die adjournment, it is not only proper but necessary that counsel representing the opposition * * * consent to such arrangement or acquiesce therein by making no objection thereto at the time. * * *' 166 S.E. at 631.

Counsel for defendant recognize that the jurisdiction of the court to entertain these motions after the trial term must rest upon plaintiff's previously manifested consent or acquiescence. Their answer to plaintiff's appeal is simply that the trial judge found that plaintiff did consent, and that, in this law case, this finding is conclusive of the issue. There can be no doubt of the sufficiency of this answer If the trial judge so found, and If such finding is supported by...