O'Rourke v. Atlantic Paint Co.

• Decision Date: 14 May 1912
• Parties: O'ROURKE v. ATLANTIC PAINT CO.
• Court: South Carolina Supreme Court

74 S.E. 930

91 S.C. 399

O'ROURKE v. ATLANTIC PAINT CO.

Supreme Court of South Carolina

May 14, 1912

Appeal from Common Pleas Circuit Court of Charleston County; Ernest Gary, Judge.

Action by the Atlantic Paint Company against Mrs. M. F O'Rourke, brought in the magistrate's court, judgment in which was transcripted into the circuit court. From an order of the circuit court denying a motion to vacate the judgment, defendant appeals. Appeal dismissed.

G. F von Kolnitz, of Charleston, for appellant. B. C. Bellinger of Charleston, and Douglas McKay, of Columbia, for respondent.

GARY C.J.

The appeal herein is from the following order of his honor, Judge Ernest Gary: "The above matter comes up on return to rule heretofore issued by Hon. R. W. Memminger requiring the plaintiff to show cause why a judgment, heretofore rendered against the defendant in a magistrate court and transcripted into this court, should not be vacated, under section 195 of the Code, upon the ground of mistake and surprise, etc., occurring during the trial before the magistrate. After hearing argument of counsel, it is ordered that the injunction heretofore granted be vacated, upon the ground that the surprise, etc., for which relief is asked did not occur in this court, or in the transcripting, but in the magistrate's court; and therefore section 195 of the Code has no application, and gives no jurisdiction to this court to grant the relief asked." The magistrate did not render judgment on the day the case was tried, but reserved his decision until a subsequent day. The appellant alleges she did not know the judgment had been filed until the time for appeal had expired, and a transcript of the judgment had been filed with the clerk of the circuit court. Section 23, art. 5, of the Constitution, provides that in all cases tried by magistrates the right of appeal shall be secured under such rules and regulations as may be provided by law. Section 359 of the Code, relating to appeals from judgments rendered by magistrates' courts, is as follows: "The appellant shall, within five days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the defendant did not appear, he shall have five days, after personal notice of the judgment, to serve the notice of appeal provided for in this section and the next section." (Section 360 provides that the notice of appeal shall be served upon the magistrate also.) Subdivision 17, § 88, of the Code, provides that magistrates shall have power to grant new trials. And subdivision 18 is as follows: "No motion for a new trial shall be heard, unless made within five days from the rendering of the judgment: Provided, that the right of appeal from the judgment shall exist for five days after the refusal of a motion for a new trial." Section 87 of the Code is as follows: "A magistrate on the demand of a party, in whose favor he shall have rendered a judgment, shall give a transcript thereof, which may be filed and docketed in the office of the circuit court of the county where the judgment was rendered. The time of the receipt of the transcript by the clerk shall be noted thereon and entered in the abstract of judgments, and from that time the judgment shall be a judgment of the circuit court, but no sale shall be made under any execution issued upon such judgment in the circuit court, until the time for appealing from the judgment in the magistrate's court has expired, nor pending such appeal. If the judgment is set aside in the magistrate's court, it shall have the effect of setting aside the judgment filed and docketed in the circuit court. The filing and docketing such transcript in the circuit court, shall not affect the right of the magistrate to grant a new trial. ***" Section 368 contains this provision: "If the defendant failed to appear before the magistrate, and it is shown by the affidavits served by the appellant, or otherwise, that manifest injustice has been done, and he satisfactorily excuses his default, the court may, in its discretion, set aside or suspend judgment, and order a new trial, before the same, or any other magistrate in the same county, at such time and place, and on such terms, as the court may deem proper."

The foregoing provisions of the Constitution and statutes show clearly that the lawmaking department of the government intended to secure to litigants in magistrates' courts the right of appeal. The failure to provide specifically for a case like this, where the magistrate reserved his decision and rendered judgment afterwards, without giving the parties notice, was, most probably, an unintentional omission; and, while the courts have no power to supply omissions in a statute, yet, where all the legislative provisions on a given subject, on being construed together show clearly the legislative intent, it is the duty of the court to so construe them as to give...