Sullivan v. Speights

• Decision Date: 09 December 1880
• Docket Number: CASE 951.
• Citation: 14 S.C. 358
• Parties: SULLIVAN v. SPEIGHTS.
• Court: South Carolina Supreme Court

14 S.C. 358

SULLIVAN v. SPEIGHTS.

CASE No. 951.

Supreme Court of South Carolina.

December 9, 1880

1. This court cannot entertain a motion for a rehearing of a case decided by it, after the remittitur has been properly sent to the court below.

2. There being a vacancy in the Supreme Court, the two remaining justices constitute the court, under the terms of Article IV., Section 2, of the constitution, and are competent to discharge all of its functions.

This was a motion for a rehearing of the points decided in Sullivan v. Speights , 12 S. C. 561. The case is fully stated in the opinion.

Mr. J. C. C. Featherston , for the motion.

OPINION

SIMPSON C. J.

At the November Term of this court, 1879, the appeal of Hewlett Sullivan, appellant, v. A. M. Speights, W. T Shumate et al., respondents, after full hearing by the court was dismissed, upon the ground that the exceptions of the appellant had not been served on the presiding judge within the time limited by the statute on that subject. The remittitur in the case was sent to the court below on January 6th, 1880, in accordance with the rules of this court, and filed by the clerk of the court below on the 10th of the same month. On April 16th thereafter the appellant gave notice that he " would move the Supreme Court for a new hearing" of said case on the grounds-

1. That the court which dismissed the appeal was not a constitutional court, there being but two judges in the Supreme Court at the time.

2. That the Circuit judge regarded the service of the exceptions as sufficient and went on and settled the facts, and that the respondents should not have been allowed to object for him.

3. That the appellant has discovered that he had written acceptance of notice and grounds of appeal within the ten days by the clerk of the Circuit Court, and that this was sufficient notice to the judge of the Circuit Court.

In accordance with this notice the petition has been presented here and is now for consideration.

This court, under the constitution, is a court for the correction of errors of law in cases at law, with appellate jurisdiction in cases of chancery. It has also original jurisdiction in certain cases, and it is authorized to hear motions with reference to cases already on its docket, brought there according to the rules prescribed in appeal cases. If the motion can be heard then, it must come before the court through one of these channels; it cannot be heard as an independent motion.

It does not claim to come by appeal to have an error either of law or fact below corrected, nor is it made in a motion within the original jurisdiction of the court.

Is it a motion with reference to a case on the docket of this court?

According to the facts stated, the case to which it refers was heard and determined at the November Term, 1879, about one year since. Under the rules of this court, when a case is heard here and determined, the remittitur to the court below is not sent down immediately, but it is retained in every case for ten days, unless the court directs otherwise. And on application, showing sufficient cause, either of the justices, at chambers, may direct by order that it be further retained until the third day of the next session. The object of this is to reserve jurisdiction over the case, so that, should either of the parties desire to make any motion in reference thereto they might have the opportunity to do so and the court the power to hear it. After the remittitur , however, is sent down, the case passes beyond the reach of this court and its jurisdiction is lost, and no motion can be heard by this court on the matter thereafter.

Now it appears that the remittitur in this case, as has been already stated, after being retained for ten days under the rules by the clerk of this court, was sent down on January 6th, 1880, and was then filed in the office of the clerk of the court below on the 10th of the same month.

Such being the fact, if there was nothing else in this petition but the two last grounds upon which it is based, it would be dismissed at once as beyond our reach. The petition, however states that the court, when it heard and determined the motion to dismiss...