Horn v. Blackwell

• Decision Date: 15 June 1948
• Docket Number: 16093.
• Parties: HORN v. BLACKWELL.
• Court: South Carolina Supreme Court

48 S.E.2d 322

212 S.C. 480

HORN v. BLACKWELL.

No. 16093.

Supreme Court of South Carolina

June 15, 1948

G. W. Speer, of Gaffney, for appellant.

R A. Dobson, of Gaffney, for respondent.

OXNER Justice.

This proceeding was brought by respondent, as landlord, to eject appellant, a tenant, from a farm which appellant was cultivating as a sharecropper. The tenant went into possession of the premises in the fall of 1946. The ejectment proceedings were commenced in the Magistrate's Court on June 7, 1947. The landlord claimed that the tenant promised to discontinue mill work at the beginning of the crop season, but failed to do so; that he failed to plant the agreed number of acres in various crops and that he had failed and neglected to cultivate any of the crops in a proper manner. The tenant denied that he had breached any of the conditions or terms of the lease. After hearing considerable testimony on the issues involved, the Magistrate issued an order on June 27, 1947, wherein he found that the tenant had violated the terms of the lease and that the landlord was entitled to a warrant of ejectment. On June 30th, the tenant served notice of intention to appeal to the Court of Common Pleas. On July 16th, the Magistrate issued a further order in which, after reciting the fact that the tenant had appealed but had failed to give bond as required by Section 30 of the landlord and tenant Act of April 3 1946, 44 St. at L., page 2584, he directed the Sheriff to forthwith eject the tenant from the premises. Notice of this order was served on the tenant on August 9th and he immediately vacated. Thereafter in November, 1947, when the appeal came up for hearing before the Court of Common Pleas the landlord moved to dismiss it upon the ground that the tenant had failed to give bond as required by the above statute. After hearing argument of counsel, the motion to dismiss the appeal was granted.

The Act of 1946, under which this proceeding was brought, provides that if the verdict in the ejectment proceeding is in favor of the landlord, the Magistrate shall within five days issue a writ of ejectment. Section 27. Section 29 allows either party the right to appeal from the judgment of the Magistrate. Section 30 provides: 'An appeal in an ejectment case will not stay ejectment unless at the time of appealing the tenant shall give an appeal bond as in other civil cases for an amount to be fixed by the trial magistrate, and conditioned for the payment of all costs and damages which the landlord may sustain thereby. In the event the tenant shall fail to file the bond herein required within five (5) days after service of the notice of appeal such appeal shall be dismissed.'

Appellant apparently concedes that under the terms of the foregoing section dismissal of an appeal by a tenant is mandatory unless bond is filed within the time stipulated. For the purpose of this decision, we acquiesce in this construction and make no effort to construe this section. Appellant's contention is solely that under our Constitution the General Assembly is without authority to require the giving of the bond as a condition precedent to the right of appeal by the tenant. Our consideration shall be strictly confined to this question.

It is well settled that the right of appeal is not an inherent or vested right, but is a matter of grace. Osteen v. Atlantic Coast Line R. Co., 119 S.C. 438, 112 S.E. 352; Cobb v. South Carolina Nat. Bank et al., 210 S.C. 533, 43 S.E.2d 465; 2 Am.Jur., page 847. In Carmand v. Wall, 1 Bailey 209, the Court said: 'It is a general rule that an appeal is not to be allowed from an inferior tribunal, except where it is expressly granted by law. It is not only a rule of the English courts, but it is one by which our courts have uniformly been governed.'

It follows that in the absence of a constitutional restriction the legislature in its discretion may abridge or regulate the right of appeal. Appellant says that in the case of an appeal from a magistrate, the General Assembly is limited by the terms of Article 5, Section 23, of our Constitution, which...