State v. Scheper Et A/

• Decision Date: 28 May 1890
• Citation: 11 S.E. 623,33 S.C. 562
• Parties: State. v. Scheper et a/.
• Court: South Carolina Supreme Court

11 S.E. 623

33 S.C. 562

State.

v.Scheper et a/.

Supreme Court of South Carolina.

May 28, 1890.

Appeal—Exceptions—When Filed.

An exception to the overruling of a demurrer not filed at the time, nor when final judgment is rendered, cannot be inserted in the record after appeal.

On motion to amend the record.

Verdier, Elliott & Townsend, for appellants.

Atty. Gen. Earle, for respondent.

Per Curiam. Upon the call of this case for hearing in the supreme court, the defendants, (appellants,) in pursuance of notice, made a motion to be allowed to serve additional exceptions, and incorporate them in the case. They submitted the following affidavit in support thereof: "Personally appeared before me, W. J. Verdier ' and W. H. Townsend, of counsel for appellants, who, being duly sworn, say that this case first came on to be heard in the court of common pleas for Beaufort county, in the year 1888before Judge Noeton, upon issue joined on a demurrer to the complaint for the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was overruled; that thereafter the defendants served their answer, and the cause again came on to be heard, in February last, before Judge Hudson and a jury, upon the issue of fact; that defendants appealed from the judgment rendered against them at their second trial, and, in preparing their proposed case on such appeal, they did not put in as part of such case the demurrer, and order overruling the same, for the reason that they thought it could not properly form part of the case, regarding it as a distinct issue which had been decided and eliminated from the cause. The respondents served amendments to the proposed case, proposing, among other things, that the demurrer and order overruling the same be inserted, to which the appellants refused to consent, and the case went before the circuit judge for settlement, upon which settlement the circuit judge ordered said demurrer and order to be made part of the case; that at this time appellants' right to file exceptions had expired, and they could not avail themselves of the right of excepting to the order overruling the demurrer. W. J. Vekdier. W. H. Town-send. Sworn to before me this 13th day of May, 1890. Jas. W. Crofut, Pension Notary and Public Notary." The following are the additional exceptions proposed: "(6) That his honor, Judge Norton, erred in not sustaining the demurrer in this action, and in holding that the complaint states facts sufficient to...