Rylee v. Marett

• Decision Date: 19 August 1922
• Docket Number: 10992.
• Citation: 113 S.E. 483,121 S.C. 366
• Parties: RYLEE v. MARETT, SHERIFF (TWO CASES).
• Court: South Carolina Supreme Court

113 S.E. 483

121 S.C. 366

RYLEE v. MARETT, SHERIFF (TWO CASES).

No. 10992.

Supreme Court of South Carolina

August 19, 1922

Appeal from Common Pleas Circuit Court of Anderson County; Ernest Moore, Judge.

Action by T. W. Rylee against W. O. Marett. Judgment for defendant and plaintiff appeals. From an order of the circuit judge denying a motion to dismiss plaintiff's appeal, defendant appeals. Appeal dismissed.

Dickson & Miller, of Anderson, for appellant.

L. W Harris and J. S. Acker, both of Anderson, for respondent.

MARION J.

T. W Rylee, plaintiff, brought an action in claim and delivery against W. O. Marett, as sheriff of Anderson county, defendant, for the recovery of an automobile which had been seized by the defendant while being used for the transportation of alcoholic liquors in violation of the prohibition law. The cause came on for trial before Hon. Ernest Moore, circuit judge, and a jury, in the court of common pleas for Anderson county, December 15, 1921. Judge Moore sustained a demurrer to the claim and delivery proceeding, on the ground that the property was in custodia legis, but allowed the trial to proceed as an action to recover possession of personal property. The trial resulted in a verdict for the defendant. Court adjourned sine die December 17, 1921. A notice of intention to appeal was served upon L. W. Harris, one of the attorneys for the defendant, or December 22, 1921, by leaving a copy of same upon his desk in his office. This notice was never seen by Mr. Harris. After the time for appeal had passed, without, as defendant's counsel understood, any notice of intention to appeal having been served, the defendant was advised by his counsel to advertise the automobile according to law and sell same, which he did. The car was sold by the sheriff on January 25, 1922. The plaintiff's case and exceptions on appeal were not prepared and served within the 30 days limited by law. Early in February, after the time for serving the case and exceptions had expired, plaintiff's attorneys requested defendant's attorneys to accept service of a proposed case and exceptions on appeal. Defendant's attorneys declined to do so, but offered to accept service and allow appeal to proceed, if plaintiff would agree to limit liability to the sale price of the car as fixed by the sale thereof made by the sheriff on January 25, 1922. The plaintiff declined that offer, and thereafter, on March 27, 1922, formally served upon defendant's attorneys, through the sheriff's office a proposed case and exceptions.

Defendant's counsel, pursuant to notice, then moved before his honor, W. H. Townsend, circuit judge, presiding at the April term of the court of common pleas for Anderson county, for an order dismissing plaintiff's appeal to the Supreme Court. Judge Townsend refused this motion, and ordered that the appeal of the plaintiff be "allowed to stand." From this order, dated April 15, 1922, the defendant appeals to this court upon a case and exceptions, served upon plaintiff's attorneys under date of May 2, 1922.

Thereafter, the date not appearing in the record, plaintiff's proposed case and exceptions on appeal from the judgment on verdict rendered on the trial of the cause before Judge Moore and a jury on December 15, 1921, were filed as the return in this court and with the Clerk of the Circuit Court of Anderson County. The defendant's attorneys signed an agreement in the usual form that such case and exceptions should "constitute the return upon which this appeal shall be heard in the Supreme Court." Upon the call of the cause for hearing in this court, counsel for defendant, Marett, insisted that the defendant's appeal from the order of Judge Townsend should be first disposed of, and that upon the record in that appeal the defendant was entitled to have the appeal of the plaintiff dismissed. Counsel for the plaintiff, Rylee, contended that the effect of the signing by defendant's attorneys of the agreement that the plaintiff's proposed case and exceptions should constitute the return upon which that appeal should be heard in the Supreme Court was to estop defendant from asserting a right to the dismissal of the plaintiff's appeal.

That contention cannot be sustained. At the time the agreement was signed, defendant's appeal from Judge Townsend's order was pending. It is not suggested that defendant's counsel actually intended to relinquish defendant's right to prosecute his appeal and to insist upon the dismissal of plaintiff's appeal by this court. In the absence of an express stipulation to that effect, no intention on the part of defendant's counsel to withdraw their appeal can be inferred from an agreement to allow plaintiff's proposed case and exceptions to constitute the return for that appeal. One obvious result of such agreement was to save plaintiff trouble in having to take other steps to complete his return, and it does not appear that his counsel were in any way misled to their prejudice. We are therefore of the opinion that defendant is entitled to have his appeal from Judge Townsend's order and his motion in this court upon the record to dismiss plaintiff's appeal first considered and determined. The appeal from Judge Townsend's order, involving the motion to dismiss, will be referred to as the "defendant's appeal"; the appeal in the main cause from the trial before Judge Moore, as the "plaintiff's appeal."

Since the jurisdiction proper of this court, to the exclusion of the circuit court, does not attach until the filing of the "return," before an appeal is perfected as required by section 384, Code of Civ. Procedure (1912), it is within the power of the circuit court to dismiss an appeal by determining and declaring that the appeal to this court has been abandoned, or the right of appeal waived, by failure to take the steps required by law to perfect such appeal. State v. Johnson, 52 S.C. 505, 30 S.E. 592; Uzzell v. Horn, 71 S.C. 431, 51 S.E. 253; Equitable Fire Ins. Co. v. Fishburne, 72 S.C. 24, 51 S.E. 528; Pelzer Mfg. Co. v. Cely, 40 S.C. 430, 18 S.E. 790; rule 23 of Rules of Supreme Court (90 S.E. xi). No return having then been filed in this court, Judge Townsend clearly had jurisdiction to hear and determine defendant's motion to dismiss plaintiff's unperfected appeal.

The status of the case as presented on the motion before Judge Townsend was such as to entitle defendant to the order of dismissal. The plaintiff had failed to prepare his case with exceptions and serve them on the opposite party within 30 days, in accordance with the mandatory requirements of the statute (section 384, Code Civ. Proc. 1912) and of rule 50 of the circuit courts. He had failed to avail himself of the remedy provided by section 387, which is as follows:

"The time for taking any step or proceeding in the preparation and perfection of appeals from the circuit courts to the Supreme Court, as now prescribed by law, may be extended by the judge who heard the cause, or by any one of the justices of the Supreme Court, upon four days' notice of such motion being first given to the opposite party, except the time of giving notice of appeal to the opposite party."

Under the provisions of that section he had the right to apply, provided the application was made before the expiration of the 30 days limited, to the circuit judge "who heard the cause," or to "any one of the justices of the Supreme Court," for an extension of the time within which to serve his case with exceptions. Stribling v. Johns, 16 S.C. 112; Tribble v. Poore, 28 S.C. 570, 6 S.E. 577; Brown v. Easterling, 59 S.C. 479, 38 S.E. 118. After having failed in apt time to apply for the desired extension under section 387, the plaintiff's only remedy was an application to the Supreme Court for permission to perfect his appeal under the provisions of section 388. Where the notice of appeal has been duly given, the Supreme Court, under section 388, may in its discretion relieve the party seeking to appeal from the consequences of other omissions in the perfecting of his appeal. Wardlaw v. Erskine, 20 S.C. 583; Saverance v. Lockhart, 66 S.C. 541, 45 S.E. 83; Deal v. Deal, 85 S.C. 262, 67 S.E. 241.

It is suggested that under section 225 of the Code of Procedure (1912), providing that "the court may likewise, in its discretion, and upon such terms as may be just, allow an answer or reply to be made, or other act to be done, after the time limited by this Code of Procedure, or, by an order enlarge such time," etc., Judge Townsend had authority, not only to decline to declare the appeal waived, but to enlarge the time for serving the case and exceptions. That section is clearly not applicable, for the reasons (1) that by context and content it refers to procedure in the circuit court prior to appeal, and (2) that by the express terms of section 384 it is declared that failure to perfect an appeal "shall amount to a waiver thereof, unless the court permit the appeal to be perfected as provided in sections 378 and 388." At the hearing of defendant's motion to dismiss before Judge Townsend, it affirmatively appeared: (1) That plaintiff's case and exceptions on appeal had not been served within the time limited by law; (2) that no extension of time had been granted by the judge who heard the cause or by a justice of the Supreme Court (section 387); and (3) that no application had been made to the Supreme Court for permission to perfect the appeal (section 388). No return having been filed in the Supreme Court, and no application having been made to that court under section 388, the circuit court then clearly had jurisdiction of the matter, and upon the facts appearing we think the circuit judge should have granted defendant's motion to dismiss or to declare plaintiff's...