Stribling v. Johns
| Decision Date | 08 October 1881 |
| Docket Number | CASE 1099. |
| Citation | 16 S.C. 112 |
| Parties | STRIBLING v. JOHNS. |
| Court | South Carolina Supreme Court |
1. A refusal by the Circuit judge of a motion to extend the time under the act of 1878, for preparing a case on appeal, so far as such refusal is a decision on questions of fact, is not appealable to this court, it being exclusively within his province to determine whether the cause shown was sufficient and reasonable.
2. No such extension of time was allowable, unless a motion therefor had been made before the expiration of thirty days after service of notice of appeal. Coleman v Scurry , 14 S. C. 166, approved.
Before ALDRICH, J., at Chambers, September, 1879.
Action by John V. Stribling against James A. Johns, in Oconee county. The opinion states the case. The order appealed from was as follows:
This is a motion to extend the time in which to perfect an appeal.
Appeal is not a right; it is a privilege of which the party desiring to avail himself can take advantage by complying with certain conditions. The judgment of a court of competent jurisdiction is prima facie supposed to be correct. It is always however, subject to review by the appellate tribunal. To entitle the party failing in the action to this review he must comply with certain prerequisites prescribed by the law and the rules of court. Nor can these be lightly regarded, for, it must be remembered, appeal operates to delay and hinder the prevailing party in the cause. In practice it too often happens that appeal is resorted to for the mere purpose of delay, a practice not to be encouraged.
While, therefore, every opportunity should be afforded to correct error, still, the rights of the successful suitor are to be considered. He should not be subjected to delay-perhaps the entire fruits of his successful litigation- unless the rules regulating the appeal have been complied with, or sufficient and satisfactory reasons shown why they have not been complied with. The affidavits, submitted to support the motion, show that the notice of appeal was served in time on the proper parties; that the defendant, Johns, supposed his attorney had perfected the appeal, and that he had " no intention of abandoning said appeal."
Mr. Norton states, in his affidavit, that he was too unwell to attend to business for several days after the court; that his law partner, Mr. Stribling, has been ill with typhoid fever for five weeks, and unable to attend to his business; that the change in the law as to appeals had escaped his notice; that he is satisfied the appeal would have been perfected, " but for his own and his partner's sickness, and that the plaintiff will not be injured by delay, as the appeal will be docketed as soon as if it had been perfected in the prescribed time."
The affidavit of defendant's attorney, Mr. Verner, negatives the statement of Mr. Norton. Without attempting to reconcile this conflict of statement, it is sufficient to say, that, in my judgment, the application comes too late. The party asking the extension, must, under the act and the rules, seek relief, if he be entitled thereto, from a justice of the Supreme Court. I may add, this legislation, as it appears to me, was intended to prevent appeals for mere delay, to which I have hereinbefore alluded.
Let the motion be dismissed, with ten dollars costs to the plaintiff.
Defendant appealed, upon the ground that " his Honor erred in the law applicable to the case, in holding that the application came too late." Plaintiff moved to dismiss the appeal because the return in the appeal from Judge Aldrich's order at chambers had not been filed in time.
Mr. J. J. Norton , for appellant.
Messrs. Keith & Verner , contra.
It appears that the plaintiff recovered judgment against the defendant for $200, for backing water and overflowing his land, and entered judgment and execution for the verdict with $92 costs taxed by the clerk. After the execution had been paid, April 18th, 1879, the plaintiff's attorney moved to tax certain costs which had been omitted in the first taxation, and the clerk taxed $64.80 additional costs. The defendant made a motion to reverse the decision of the clerk in allowing the additional costs, before Judge Aldrich, who sustained the clerk's taxation and refused the motion. From this order notice of appeal was given within ten days but the case was not prepared...
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