McPherson v. Anderson

• Decision Date: 26 February 1943
• Docket Number: 15510.
• Citation: 24 S.E.2d 516,202 S.C. 312
• Parties: McPHERSON v. ANDERSON.
• Court: South Carolina Supreme Court

24 S.E.2d 516

202 S.C. 312

McPHERSON v. ANDERSON.

No. 15510.

Supreme Court of South Carolina

February 26, 1943

R E. Hanna, of Cheraw, for appellant.

John D. Nock, of Cheraw, for respondent.

BAKER Justice.

This action was commenced by service of a summons on December 28 1938, against J. L. Anderson as an individual, and was followed by service of a complaint on January 5, 1939.The complaint was amended two or more times, the last complaint being served on February 28, 1939.

The respondent, J. L. Anderson, departed this life testate, on February 18, 1940.His executrix qualified, and on February 28, 1941, received her letters dismissory.Notice to creditors and notice of application for discharge were duly published and no claim was filed by appellant, nor was the executrix substituted as defendant.

On January 12, 1942, on appellant's motion, a rule to show cause was issued, addressed to (1) Honorable Ed. Redfern Clerk of Court for Chesterfield County, as to why he should not qualify and be made a party-defendant as administrator de bonis non of the estate of J. L. Anderson, deceased defendant; (2) to Anderson's two sons why they should not be made defendants"as surviving directors of J. L. Anderson, Inc."; (3) to Anderson's widow, two sons, and two daughters "as successors in interest of J. L. Anderson and J. L. Anderson, Inc."; and (4) to the same parties last named as "heirs at law, distributees and legatees," as to why they should not be made parties.

Due return was made to the rule to show cause, and the matter came on to be heard before Honorable Henry Busbee, Special Judge, presiding at Chesterfield, who refused the motion.

Notice of appeal from this order was given, and also notice of appeal from a subsequent order of Acting Judge Busbee settling the case for appeal, but we do not deem it necessary to go into the exceptions thereto or the further history of the case leading up to the appeals from Judge Busbee's orders, except the fact that the order settling the case was dated October 8, 1942, and was filed in the office of the Clerk of Court for Chesterfield County and served on appellant's attorney on October 9, 1942.

On December 14, 1942, respondent's attorney served upon the attorney for appellant a notice that on December 19, 1942, he would move before Honorable E. C. Dennis, Judge of the Fourth Judicial Circuit, at his Chambers in Darlington, S.C., on December 19, 1942, for an order dismissing the appeal "on the ground that the Return of appellant has not been filed in the Supreme Court within the time limited by the rules of said Court; said motion to be based upon the Certificate of the Clerk of the Supreme Court and the annexed affidavit of respondent's attorney."

The affidavit set forth "that although the case for appeal herein was settled by Order of Court dated October 8, 1942, and said Order was served on counsel for the appellant on October 9, 1942, no copies of the Case on appeal have been served upon the respondents or their attorney."The Certificate of the Clerk of this Court consisted of a letter from the said Clerk to respondent's attorney in which he stated "*** that the case of McPherson vs. Anderson has not been docketed in this Court."The Clerk did not issue a regular form certificate to this effect, but in our opinion the letter above referred to was ample.

Upon request of appellant's attorney the day for the hearing of the motion to dismiss appellant's appeal was postponed to December 22, 1942; and on account of a sleet storm the hearing was further postponed until December 30, 1942.Judge Dennis dismissed the appeal for the reason that the "casefor appeal"(Transcript of Record) had not been served on respondent's counsel nor filed in the Supreme Court.It appears from all the papers...