Saverance v. Lockhart

• Decision Date: 03 July 1903
• Parties: SAVERANCE v. LOCKHART.
• Court: South Carolina Supreme Court

45 S.E. 83

66 S.C. 539

SAVERANCE v. LOCKHART.

Supreme Court of South Carolina

July 3, 1903

Appeal from Common Pleas Circuit Court of Florence County; Purdy Judge.

Action by R. G. Saverance against W. J. Lockhart. From order as to taxation of costs, plaintiff appeals. Reversed.

Wilcox & Wilcox, for appellant. W. F. Clayton, for respondent.

JONES J.

This appeal is from an order of the circuit court correcting taxation of costs by the clerk. After the judgment of this court was rendered in this case (57 S.C. 131, 35 S.E. 505) the circuit court on June 2, 1900, made an order to carry said judgment into effect. From this order notice of intention to appeal was served within 10 days thereafter, and the appeal to this court was heard upon an agreed case, which was filed in lieu of a return in November, 1901, resulting in a modification of the order appealed. 63 S.C. 74, 40 S.E. 1026. The defendant, as prevailing party in last named applied to the clerk of court for Florence county to tax costs in his favor, including $10 for brief and $25 for argument in Supreme Court. The clerk refused to allow these items, but on appeal the circuit court (Judge Purdy) adjudged that defendant was entitled to said costs, holding that this appeal was taken to the Supreme Court when the return as agreed case was filed in November, 1901, and not when the notice of intention to appeal was served in June, 1900, and that therefore defendant had a right to such costs under the act of February 20, 1901.

We think the court committed error in so holding. The act in question provides "that from and after the passage of this act, when an appeal is taken to the Supreme Court of this state, the following costs shall be allowed in all classes of cases, legal or equitable: For plaintiff's or defendant's attorneys for making and serving a case or a case containing exceptions, $10; *** on argument in the Supreme Court, $25." Approved February 20, 1901 (23 St at Large, p. 620). If the appeal was taken when the notice of intention to appeal was served in June, 1900, the act would not apply; but if the appeal was not taken until the filing of the agreed case or return in November, 1901, the act would apply. The question, then, is: When is an appeal taken to the Supreme Court in the sense of this statute? We think such an appeal is "taken" when notice of intention to appeal is served, as required by law. In 2 Ency. Pl. & Prac 237, it is stated: "An appeal is taken where a legal condition is performed which terminates the running of the statute limiting the time for taking it. *** Under Code practice, an appeal is taken by serving and filing the notice of appeal." An examination of the statute, the rules of court, and the decisions of this court will show that the expressions, "notice of intention to appeal" and "notice of appeal," are used interchangeably and mean the same thing. Section 339, Code Civ. Proc., provides that an appeal from an order, judgment, or decree must be made by the service of a notice in...