O'Leary v. Bradley

Decision Date03 January 1894
Citation18 S.E. 933,40 S.C. 551
PartiesO'LEARY v. BRADLEY et al.
CourtSouth Carolina Supreme Court

Appeal from common pleas circuit court of York county.

Action by George H. O'Leary against A. J. Bradley and others. From a judgment for plaintiff, defendants appeal. The appeal was dismissed by the clerk, and defendants now move to reinstate, while plaintiff makes another for dismissal. Reinstatement denied.

J. P Thomas, Jr., for appellants.

Geo. W S. Hart, for respondent.

McIVER C.J.

There are three motions in this case, as follows: (1) The defendant, appellant, moves for an order vacating the order of the clerk dismissing the appeal under rule 1, and to reinstate the same, on the ground of excusable neglect on the part of the appellant. (2) The plaintiff, respondent, moves to dismiss the appeal on the ground of failure on the part of the appellant to file the "case," as settled, in the office of the clerk of the circuit court, as required by rule 49 of the circuit court, in the event of the first motion being granted. (3) The plaintiff moves for an order dissolving the order of injunction, granted by Mr. Associate Justice Pope pending the motion made by the defendant appellant, to reinstate his appeal. The appellant submitted various affidavits in support of his motion, and the respondent submitted affidavits in reply thereto. After hearing counsel on both sides, the court decides as follows The real question is whether the appellant has made such a showing of "excusable neglect" as will entitle him under the rule of this court, to have his appeal reinstated. If this is decided adversely the motion of the respondent to dismiss, under rule 49 of the circuit court, does not arise and need not be considered. The motion to dissolve the order of injunction is dependent on the result of the first motion. There is no doubt as to the right of the clerk to dismiss the appeal, under rule 1, upon the affidavit submitted to him, and no question has been raised as to that. It does seem to us, without going into all the minute details of this case, that the appellant has not shown any sufficient reason for his neglect. The notice of intention to appeal was given as far back as 27th April, 1893. But, without discussing all the details, we are impressed with the belief that there has not been shown any excusable neglect in appellant's failure to file his return as required by the rule. The motion must...

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