Stroup v. Duke Power Co, 16288.

• Decision Date: 30 November 1949
• Docket Number: No. 16288.,16288.
• Court: South Carolina Supreme Court
• Parties: STROUP. v. DUKE POWER CO.

56 S.E.2d 745

STROUP.
v.
DUKE POWER CO.

No. 16288.

Supreme Court of South Carolina.

Nov. 30, 1949.

[56 S.E.2d 745]

Action by Lake W. Stroup, as ancillary administrator of the estate of Robert L. McCorkle, deceased, against the Duke Power Company for damages for alleged wrongful death.

The Common Pleas Court, Cherokee County, J. Henry, Johnson, J, entered judgment for the defendant on March 10th and plaintiff served notice of intention to appeal on March 31 and the appeal was dismissed as not being within 10 day period after rising of the Circuit Court as required by the statute and the plaintiff appealed.

The Supreme Court, Oxner, J, held that under the statute the Court of Common Pleas rose not later than March 19 and although term of General Sessions did not expire until March 26, notice of intention to appeal served 12 days thereafter was not within time and affirmed the order.

Carlisle, Brown & Carlisle, Spartanburg, J. Claude Fort, Gaffney, for appellant.

Sam R. Watt, Spartanburg, C. E. Daniel, Spartanburg, for respondent.

OXNER, Justice.

The sole question before us is whether appellant gave notice of intention to appeal to this Court "within ten days after the rising of the circuit court", as required by Section 781 of the Code of 1942.

The statute fixing the terms of court for Cherokee County is as follows: "The court of common pleas for Cherokee County shall convene at Gaffney on the first monday of March for two weeks, on the first monday of July for one week, and on the first monday of November for two weeks. The court of general sessions for Cherokee County shall convene at Gaffney on the third monday of March for one week, on the second monday of July for one week, and on the third monday of November for two weeks." Section 57(1) (a) of the 1942 Code.

This action was instituted on August 16, 1948, to recover damages for the alleged wrongful death of Dr. Robert L. McCorkle. The March, 1949, term of the Court of Common Pleas for Cherokee County convened on Monday, March 7th. The trial of the action mentioned was commenced on Wednesday, March 9th, and was concluded on the following day. The jury returned a verdict for the defendant. This was the last case tried at that term of Court. The second week of the Court of Common Pleas was "called off" by the Cherokee County Bar. The record does not show the date on which the Presiding Judge adjourned the Court sine die but the statutory term of two weeks would have expired on March 19th. The March term of the...