Southern Pine Lumber Co v. Martin
| Decision Date | 19 December 1921 |
| Docket Number | (No. 10785.) |
| Citation | 110 S.E. 804 |
| Court | South Carolina Supreme Court |
| Parties | SOUTHERN PINE LUMBER CO. v. MARTIN et al. |
On Petition for Rehearing Feb. 24, 1922.
On Petition for Rehearing.
Appeal from Common Pleas, Circuit Court of Spartanburg County; Ernest Moore, Judge.
Action by the Southern Pine Lumber Company against D. P. L. Martin and others. From judgment for plaintiff, defendants appeal. Appeal dismissed.
The following are the grounds presented in appellant's petition for rehearing:
(1) That a material point has been inadvertently overlooked by the Supreme Court in its opinion filed December 19, 1921, in the above-stated case, in the following particulars, to wit:
(a) In that the court failed to consider the exceptions filed by the appellants to the settlement of the case by the presiding judge, they having held in their opinion that the sole question involved is "whether or not a new trial is to be granted in a law case on the ground that the stenographer, who had taken the testimony at the trial, died without having transcribed his notes and no other person could read his notes, notwithstanding that the case had been made and settled by the trial judge, " when it appeared in the record that the judge failed to settle the case, he having stated in his order that the amendments proposed did not contain all the law or all the testimony material to the case.
(b) In that the court, in holding that "there is no law or rule that requires the use of stenographer's notes in the preparation of an appeal, " they having failed inadvertently to consider the fact that, when the law that provided for court stenographers was passed, by implication required that the stenographer's notes be used and required to make up the case for appeal, and by implication the law that where there was any doubt as to what took place in the trial, the same should be settled by the stenographer's notes.
(c) In that the Supreme Court inadvertently overlooked the exceptions of appellant to the judge's order, attempting to settle the case as appears from the following extract of their opinion, to wit: "The provisions of the statute and the rules of court were complied with, and the presiding judge settled the case, and that settlement is before us without exception." When the record shows that the appellants did except to the settlement of the case by the presiding judge.
Nicholls & Wyche and John Gary Evans, all of Spartanburg, for appellants.
Brown & Boyd, of Spartanburg, for respondent.
WATTS, J. [1] This is an appeal from an order of Judge Moore, and the sole question involved is whether or not a new trial is to be granted in a law case on the ground that the stenographer who took the testimony at the trial died without having transcribed his notes, and no other person could read his notes, notwithstanding that a casehad been made and settled by the trial judge. The Civil Code of Procedure, § 384, and Rule 5 of this court (90 S. E. vii), provide how a case on appeal shall be prepared. There is no law or rule that requires the use of stenographer's notes in the preparation of the appeal.
The authorities quoted by appellant do not apply to the present procedure. Before 1868 the circuit judge could not grant a new trial; the Court of Appeals or the Supreme Court, only, could do that, even in a law case. In the jurisdictions wherein new trials have been granted for loss of testimony, it is based on a statute or rule of court. That law does not apply in this state, as before stated.
We have a statute and rule showing how a case is settled. If there is disagreement in the settling of the case on allowing proposed case or amendments offered, it is the duty of the judge who tried the case to settle it one way or the other. He can allow so much of the case proposed, or amendments as he sees fit, or he can make a report of the whole case himself, and we are bound by whatever case the judge makes. It is his duty to give some, settlement and report in order that the cause may be heard on appeal.
The provisions of the statute and rules of court were complied with, and the presiding judge settled the case, and that settlement is before us without exceptions. The contention of appellants is without merit and must be overruled, and appeal dismissed.
GARY, 0. J., and FRASER and COTH-RAN, JJ., concur.
On Petition for Rehearing.
This is an appeal of most novel impression. The action is upon a contract for the sale by the defendant of certain lumber which the plaintiff alleges the defendant failed to comply with, to their damage $2,750. The defendant denied that he had failed to comply with the contract and, on the contrary, alleged that he had been always ready to do so, but was prevented by the plaintiff, to his damage $3,000, which he set up as a counterclaim.
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Hill v. Brd. River Power Co
...verdict were as to the sufficiency of the evidence to sustain a verdict of actual and punitive damages. See Southern Pine Lumber Co. v. Martin, 118 S. C. 319, 110 S. E. 804; Glenn v. Southern Railway Co., 145 S. C. 41, 142 S. E. 801; Kneece v. Hall, 138 S. C. 157, 135 S. E. 881. No question......
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Bradley v. Hazard Technology Co., Inc., 30
...of trial transcript due to death of court stenographer did not entitle appealing party to new trial); Southern Pine Lumber Co. v. Martin, 118 S.C. 319, 110 S.E. 804 (1922) (same). See generally, Edward L. Raymond, Jr., Annotation, Court Reporter's Death or Disability Prior to Transcribing N......
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...with the contention of the State. His statement as to what transpired is final and not subject to review here. Southern Pine Lumber Co. v. Martin, 118 S.C. 319, 110 S.E. 804; State v. Campbell, 131 S.C. 357, 127 S.E. 439; Thompson v. Bass, 167 S.C. 345, 166 S.E. 346. The case as fixed by hi......
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...all of which occurred before the case for appeal had been finally settled by the trial Judge.' In the case of Southern Pine Lumber Co. v. Martin et al., 118 S.C. 319, 110 S.E. 804, this Court 'We have a statute and rule showing how a case is settled. If there is disagreement in the settling......