Horger v. Sims
| Decision Date | 12 February 1925 |
| Docket Number | (No. 11681.) |
| Citation | 126 S.E. 430 |
| Parties | HORGER v. SIMS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Orangeburg County; J. K. Henry, Judge.
Action by Mary A. Horger against James Izlar Sims. From an order sustaining a motion to dismiss appeal to Supreme Court from order of reference, defendant appeals. Reversed.
Sims & Sims, of Orangeburg, for appellant.
Herbert & Herbert, of Orangeburg, for respondent.
In an action for the foreclosure of a real estate mortgage, in which the defendant set up a counterclaim for rent, an order of reference was made, from which defendant's attorneys served a notice of intention to appear to this court. Thereafter, the cause being on calendar 2, the plaintiff's attorneys, without notice to defendant's attorneys, moved in open court to dismiss the appeal above referred to on the grounds (1) that the notice of intention to appeal had not been served in time; and (2) that no case and exceptions had been served within the time required by law. Thereupon the circuit judge made an order, sustaining both grounds of the motion for dismissal, and declaring the appeal abandoned.
It is conceded that the circuit judge's finding that the notice of appeal had not been served in due time was in error. The one question presented by the appeal is, where due notice of intention to appeal has been given, is a motion to dismiss the appeal in the circuit court such a motion as entitles the adverse party to notice? We are of the opinion that the motion to have the proposed appeal judicially declared waived or abandoned for failure to perfect the appeal (section 646, subdivision 3, Code Civ. Proc. 1922) is a motion of which notice is necessary (see sections 753, 754, 755, Code Civ. Proc. 1922). Whether the appeal has in fact been perfected, or whether there has been in fact an extension of time by competent authority (sections 649 and 650, Code Civ. Proc. 1922), or by agreement of counsel or otherwise, are issues of fact upon which the party who has served due notice of intention to appeal is entitled to be heard.
We think the nature of the issues thus involved is such as to entitle the party whose rights may be affected by the order to the notice prescribed by section 755, Code Civ. Proc. 1922. Obviously the showing of fact which the party affected may be entitled to make might reasonably require preparation, which could not be given without adequate and definite notice. While the point seems not to have...
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State v. Cottingham
...be dismissed. Four days' notice of motion, which is the usual practice, would have sufficed. Section 10-1227, Code of 1952. Horger v. Sims, 131 S.C. 117, 126 S.E. 430. Circuit Court rule 56. The record shows that appellants' counsel had seven days' notice of the hearing and he does not cont......
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Galloway v. Galloway
...the nature of the issue thus involved is such as to entitle the minor whose rights may be affected by the order to notice. Horger v. Simms, 131 S.C. 117, 126 S.E. 430. It has been broadly stated that under adoption proceedings there are four interested parties: (1) The minor child; (2) the ......
- Horger v. Sims