Peezer Manuf'g Co v. Cely

• Decision Date: 22 January 1894
• Citation: 40 S.C. 430,18 S.E. 790
• Parties: PEEZER MANUF'G CO. v. CELY et al.
• Court: South Carolina Supreme Court

18 S.E. 790

40 S.C. 430

PEEZER MANUF'G CO.

v.CELY et al.

Supreme Court of South Carolina.

Jan. 22, 1894.

Appellate Coukt — When Jurisdiction Attaches—Filing Return—Right to Levy Execution—Effect of Appeal.

1.The jurisdiction of the supreme court on appeal from the circuit court does not attach till the return is filed, as required by rules 1and2; and a judgment, an execution, and a levy in the circuit court after appeal, but before the return is filed, are not void for want of jurisdiction, since the circuit court does not lose its jurisdiction till that of the supreme court attaches.

2.A judgment obtained on a money demand is one "directing the payment of money, " within Code. § 346, providing that "a notice of appeal from a judgment directing the payment of money shall not stay the execution of the judgment, unless" a stay of execution is granted.

Action by the Pelzer Manufacturing Company against Cely & Bro. Judgment for plaintiff.Defendants move to set aside the judgment, an execution issued thereon, and a levy made thereunder.Denied.

Perry & Hayward, for plaintiff.

H. J. Haynsworth and A. M. Lee, for defendants.

McIVER, C. J.This is a motion addressed to this court under a notice duly served, of which the following is a copy: "Take notice that upon the affidavit hereto attached, and all the pleadings and proceedings in the above-entitled cause, we shall move the above-mentioned court at Columbia, S. C, on Wednesday, the 17th day of January instant, at eleven o'clock in the forenoon, or as soon thereafter as counsel can be heard, for an order vacating and setting aside the judgment entered in the above-entitled cause, the execution issued thereon, and the levy made thereunder, upon the ground that said judgment, execution, and levy are void, the circuit court having been deprived, by this appeal, of all jurisdiction in the cause."It appears from the showing made at the hearing of this motion that the judgment appealed from was duly entered in the proper office on the 15th day of December, 1803, and on the same day execution was issued to enforce said judgment, which was lodged in the office of the sheriff on the said 15th of December, 1893.On the same day, notice of intention to appeal was served on Mr. Haynsworth (one of the attorneys of plaintiff,) but, as appears from the uncontradicted affidavit of Mr. Haynsworth, two or three hours after he had filed the judgment in the clerk's office, and after he had left the execution in the office, with instructions to sign, seal, and deliver the same to the sheriff.It furthermore appears that on or about the 30th day of December, 1893, the plaintiff executed the bond to the defendants, with two good sureties, provided for by section 346 of the Code, to enable the plaintiff to enforce a sale of property, which being satisfactory to the sheriff, that officer thereafter, to wit, on the 3d day of January, 1894, levied upon the stock of goods of the defendants, and took the same into his custody and possession.It also appears that in due time, to wit, on the 13th day of January, 1894, the appellants served their proposed "case" and exceptions, and on the 16th of January, 1894, duly filed the return required by rules 1and2 of this court.It will be observed that this is not a motion for a stay of proceedings in the court below, pending an appeal under the provisions of section 349 of the Code; nor does it appear that any such application has been made to either of the justices of this court, under rule 21 of the supreme court; nor does it appear that any application has been made to the presiding judge before whom the judgment was obtained for a stay of execution; but, on the contrary, as it is explicitly stated in the notice of the motion, (for which reason we have deemed it proper to set out such notice in haec verba,) it is an application for an order "vacating and setting aside the judgment entered in the above-entitled cause, the execution issued thereon, and the levy made thereunder, upon the ground that said judgment execution, and levy are void, the circuit court having been deprived, by this appeal, of all jurisdiction in the cause."So that the only question presented by this motion is whether the circuit court had lost its jurisdiction of the cause at the time when the judgment was entered, the execution issued, or the levy made.As we understand it, the circuit court, having once acquired jurisdiction of a cause and the parties thereto, retains such jurisdiction until it is lost; and it is not lost until the jurisdiction of this court attaches.Now, as it has always been held that the jurisdiction of this court does not attach until the return required by rules 1and2 has been filed in this court, for the obvious reason that, until the return is...