Parsons v. Gibbes

Decision Date21 January 1901
Citation37 S.E. 753,59 S.C. 215
PartiesPARSONS v. GIBBES. (State report title: American Publishing and Engraving Co. v. Gibbes & Co.).
CourtSouth Carolina Supreme Court

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 Gibbes, doing business as Gibbes & Co. From a judgment in favor of defendant, plaintiff appeals. Heard on motion to dismiss appeal. Motion denied.

J. P. Thomas, for the motion.

Le Roy F. Youmans, opposed.


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 strictly accurate to say that the order of Judge Townsend was granted upon motion of plaintiff's counsel, for, although that fact is stated in the affidavit upon which the present motion is based, yet in that affidavit the order of Judge Townsend was referred to as a part of the affidavit, which order reads as follows: "This action having been called for trial, and a jury impaneled, the plaintiff offered testimony in the form of a commissioner's disposition taken in New York. This was objected to, and, objection having been sustained, plaintiff's counsel announced that he would take warrant [manifestly a mistake for a nonsuit], which was granted." So that, as we infer, the statement made in the affidavit that the order of Judge Townsend was passed upon the motion of plaintiff's counsel, is based upon a misconstruction of the terms of that order; for, as we construe the terms of the order, it amounted to nothing more than a permission to plaintiff's counsel to do what he had expressed a wish to do after his testimony had been ruled out,--take a nonsuit. It seems to us, therefore, that the real question in this case is whether a plaintiff, after finding that the testimony which he relies upon to establish his case has been ruled (incorrectly, as he believes) to be incompetent, may not take a nonsuit, and then appeal from the judgment of nonsuit. There can be no doubt that prior to the adoption of the Code of Procedure this was frequently allowed, as may be seen by reference to the following cases: State v. Davidson, 1 Bailey, 35 (in an action on the official bond of a tax collector); Caston v. Perry, Id. 533 (which was an action of trespass to try title); Bailey v. Jennings, Id. 564 (which was an action of trover); Wiggins v. Hunter, 1 Harp. 54....

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