Parsons v. Gibbes

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: PER CURIAM
• Citation: 37 S.E. 753,59 S.C. 215
• Parties: PARSONS. v. GIBBES.
• Decision Date: 21 January 1901

59 S.C. 215
37 S.E. 753

PARSONS.
v.
GIBBES.

Supreme Court of South Carolina.

Jan. 21, 1901.

APPEAL—JUDGMENT OP NONSUIT—DEFAULT IN SERVING CASE—DISMISSAL.

1. Where the testimony on which plaintiff relies to sustain his case is rejected—erroneously, as he believes—as incompetent, he may take a nonsuit, and appeal therefrom, as he cannot be regarded as voluntarily submitting to a nonsuit.

2. An appeal will not be dismissed for default in serving the "case" with exceptions within 30 days after the service of notice of intention to appeal, where the notice was "that the plaintiff intends to appeal from the judgment to be entered up" in the circuit court, and it does not appear that such judgment has been entered.

Appeal from common pleas circuit court of Richland county; D. A. Townsend, Judge.

Action by Annie B. Parsons, doing business under the name of the American Publishing & Engraving Company, against W. H. Globes, doing business as Gibbes & Co. From a Judgment In favor of defendant, plaintiff ap-

[37 S.E. 754]

peals. Heard on motion to dismiss appeal. Motion denied.

J. P. Thomas, for the motion.

Le Roy P.Youmans, opposed.

PER CURIAM. This Is a motion to dismiss the appeal on two grounds: (1) Because the matter sought to be appealed from is not appealable; (2) because the "case" and exceptions have not been served within the time provided by law. The motion papers disclose the following facts: That the case came on for trial before his honor, Judge Townsend, and a jury, on the 14th day of November, 1900, when the plaintiff offered testimony in the form of a commission "on disposition taken in New York, " which testimony was objected to by defendant, and the objection was sustained. Thereupon plaintiff's counsel announced that he would take a nonsuit, which was allowed, and an order to that effect was passed, bearing date the 14th day of November, 1900. On the same day the court at which the said order was passed adjourned sine die. In due time thereafter, to wit, on the 24th day of November, 1900, plaintiff's counsel gave notice of his intention "to appeal from the judgment to be entered up in this court, " but it does not appear when, if at all, any such judgment was entered up in the circuit court. It does appear, however, that no "case" with exceptions has ever been served upon counsel for respondent, although more than 30 days had elapsed since the service of the said notice of intention to appeal before the notice of the motion under consideration was served.

We will consider first the first ground upon which the present motion is based, to wit, that the matter sought to be appealed from is not appealable, because, as we learn from the argument here, a party cannot appeal from an order or judgment which he has asked for, and that, as plaintiff's counsel moved for the order granted by Judge Townsend, he cannot appeal therefrom; the case of Reeves v. Brayton, 40 S. C. 551, 18 S. E. 932, being cited by respondent's counsel to sustain his position. In the first place, it is not...