Newman v. Clyburn

• Citation: 40 S.C. 549,18 S.E. 889
• Parties: NEWMAN. v. CLYBURN et al.
• Decision Date: 14 December 1893
• Court: United States State Supreme Court of South Carolina

18 S.E. 889

40 S.C. 549

NEWMAN.

v.CLYBURN et al.

Supreme Court of South Carolina.

Dec. 14, 1893.

Appeal— Agreed Case—Time of Piling.

Sup. Ct. Rule 1 gives appellant the whole of 20 days after agreement to tile the agreed "ease" with the clerk of such court, and the fact that such "case" and return were not delivered til the clerk's office till after he had left it, on the twentieth day, and so were not marked "Filed" by him till next day, did not make them too late.

Appeal from common pleas circuit court of Chesterfield county.

Action by John C. Newman against James Clyburn and others. On motion to reinstate defendants' appeal. Motion granted.

Boyd & Brown and R. T. Castou, for appellants.

W. F. Stevenson, for respondent.

PER CURIAM. This is a motion to reinstate the appeal dismissed by the clerk under rule 1. The fads arc as follows:

"John C. Newman, Plaintiff, Respondent, against Margaret Clyburn and others. Defendants, and the following ex parte Petitioners, Elizabeth A. Fields and others, Appellants. Personally appeared before the subscribing officer, Albert M. Boozer, who on oath says that he is clerk of the supreme court, and that he received the case and return in the above cause through the post office at Columbia, S. C, and that the envelope containing same shows from the postmarks thereon that it was received at the post office at Columbia at 1:30 P. M. on September 19th, 1893; that same was probably put in his delivery box that afternoon, after his office was closed for the day, as the afternoon delivery is generally made after his office hours; that he did not come to his office that evening, but received same out of his delivery box the next day, (September 20th.) and upon this day marked same 'Filed' in his office; and upon the affidavit of W. F. Stevenson, one of respondent's attorneys, that the same had not been filed within the required time, he dismissed the appeal. Albert M. Boozer, Clerk Supreme Court. Sworn to before me this 19th October, 1893. J. A. Sawyer, [Seal] Not. Pub. for S. C."

"John C. Newman, Plaintiff, Respondent, against Margaret Clyburn, and others, Defendants, and the Following Named ex parte Petitioners, Elizabeth A. Fields and others, Appellants. Personally appeared before tin-subscribing officer, R. T. Caston, one of the attorneys for the appellants in the above ease, who on oath says: That he had charge of the preparation of this appeal, and that soon after the notice of appeal was served he entered into an agreement with the attorneys for respondent under which the appellants were given until August 20th, 1893, to prepare case for appeal, and respondent was given until August 31st, 1S03, to serve except ions thereto. That on August 30th, 1893, the case was made up under said agreement, and consent indorsed thereon that same should constitute the case and return for the hearing in the supreme court. Soon thereafter (on September 9th, as deponent is informed by the clerk of court) the original was filed in the office of clerk of court for Chesterfield county, and during the week following copies were furnished him, with the request that he would verify same, and, after attaching his certificate thereto, forward same to the clerk of the supreme court. As deponent lived at a distance from the courthouse, and as the clerk was very busy, —it being about the close of a long session of court, and the clerk wished to examine copy before certifying same.—deponent left same with him with, the request to forward same to clerk of the supreme court, he is informed by the clerk that within a day or two thereafter he forwarded the certified copy to the clerk of the supreme court, and he is informed by the clerk of the supreme court that he received and marked same 'Filed' in his office in Columbia. S. C, on September 20th, 1893, but that the envelope containing same showed from the postmark thereon that it was received at the Columbia post office at 1:30 P. M. on the day before. (September 19th.) and was probably delivered in the delivery box of the clerk of the supreme court on that day, but, as his office was not open at the time, the same was not received by him until the next day, (September 20th.) Thus the case and return was filed one day late. Deponent is informed and believes that daily mail from Chesterfield and Cheraw to Columbia reaches Columbia about 11 o'clock A. M., and that if promptly delivered would reach the...