Haughton v. Order of United Commercial Travelers of America

• Decision Date: 05 September 1917
• Docket Number: 9803.
• Citation: 93 S.E. 393,108 S.C. 73
• Parties: HAUGHTON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.
• Court: South Carolina Supreme Court

93 S.E. 393

108 S.C. 73

HAUGHTON v. ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA.

No. 9803.

Supreme Court of South Carolina

September 5, 1917

Appeal from Common Pleas Circuit Court of Spartanburg County; James E. Peurifoy, Judge.

Action by Eliza H. Haughton against the Order of United Commercial Travelers of America. From a judgment for defendant plaintiff appeals. Appeal dismissed.

Carson & Boyd and Sanders & De Pass, all of Spartanburg, for appellant.

Bomar & Osborne, of Spartanburg, for respondent.

HYDRICK J.

At the hearing respondent moved to dismiss this appeal on the ground that notice of appeal was not served within the time required by statute. For convenience, we heard the argument on the motion and on the merits at the same time. But, as the motion challenges our jurisdiction, it must be decided, first, because, if notice of appeal was not given in time, we have no jurisdiction, and anything that we might say upon the merits would be coram non judice.

The facts upon which the motion is based are: The September term of the court of common pleas for Spartanburg county, at which this case was tried, as fixed by statute, began September 25 1916, and might have continued through October 21st following. 29 Stat. 695. This case was tried on the 16th and 17th days of October. Plaintiff was nonsuited. After the trial, on October 17th, the presiding judge announced that a recess of the court would be taken until the week following the term of court for Cherokee county, in the same circuit when he would return to Spartanburg and dispose of any equity cases triable at that term. On October 23d the court of general sessions for Spartanburg county was opened and held by the same presiding judge, and continued in session until November 3d, when it was adjourned sine die. On November 20th, after he had held the court for Cherokee county, the presiding judge returned to Spartanburg, and, having tried such equity causes as the bar wanted him to hear, adjourned the court sine die on November 24th, on which day the clerk entered in the journal: "Adjourned sine die." The journal shows no previous adjournment of the term begun on September 25th. The judgment in this case was entered upon the order of nonsuit on November 13th, and the costs were taxed; but no notice of the taxation thereof, or of the entry of the judgment, was given plaintiff's attorneys. Notice of appeal was served November 28th.

Our decisions show that this court is very reluctant to dismiss appeals on technical grounds. Therefore we have construed the statutes and rules of court liberally in favor of the right of appeal. O'Rouke v. Paint Co., 91 S.C. 399, 403, 74 S.E. 930. But there is a limit beyond which the most liberal construction cannot go. Due respect for a co-ordinate branch of the government forbids the courts to thwart, by construction, the intention and mandate of the law-making power, when clearly expressed, or necessarily implied in its enactments. Therefore we have held in numerous cases that the courts have no power to extend the time fixed by statute within which notice of intention to appeal must be given, and that the failure to give such notice, within the time so fixed, is fatal and irremediable.

The question then is: Did the presiding judge have the power, under the circumstances and for the reason stated, to adjourn the court of common pleas for Spartanburg county from October 17th until November 20th, and reconvene it on the day last named, while he, in the meantime, was engaged in holding the court of general sessions in the same county and the court of common pleas in Cherokee county? Or was the Spartanburg court adjourned by operation of law at the expiration of the time fixed by the statute for that term? It makes no difference whether the action taken be called a recess or an adjournment. We consider the effect of the statutes upon the situation and the power of the presiding judge to do what was done.

Attentive consideration of the provisions of the Constitution and statutes manifests the intention of the lawmakers that the terms of the circuit courts shall be fixed, not absolutely, but as nearly so as is practicable, and consistent with the due, orderly, and economical administration of the business thereof, to the end that the people may know with reasonable certainty when and where they may be required to attend them. The Constitution provides that they shall sit in each county at least twice in every year at such stated times and places as may be appointed by law (article 5, § 16 ), and it provides for the appointment of Judges to hold either special or regular terms thereof, as necessity may require (article 5, § 6); and the Legislature has made provision for almost every conceivable contingency that may arise in giving effect to that intention.

The terms for each county are fixed by statute. If the judge is temporarily detained, the clerk opens and adjourns the court from day to day until he attends, or until it appears that he cannot attend, when he adjourns it until the next regular term. Civ. Code, vol. 1, § 1318. If the judge knows beforehand that he will not be able to attend at the stated time, it is his duty to notify the Chief Justice, so that his place may be temporarily filled. Civ. Code, vol. 1, § 3839. If the presiding judge in any circuit finds that the time fixed for any court is insufficient for the disposition of all the business before it, another judge may be appointed to hold the next court in term which he has been assigned to hold, in order that he may keep the court over which he is then presiding in session until all the business before it has been disposed of. Civ. Code, vol. 1, § 3840. If the court of common pleas follows the court of general sessions, and the presiding judge finds that the term fixed for the court of general sessions is insufficient, he may adjourn the court of common pleas until he can finish the business of the court of general sessions. Code Civ. Proc. § 31. If a dangerous and general disease is prevailing at the place where a court is to be held, the judge may adjourn it "to a future day designated in a written order to the...