Thomas v. Lynch

• Decision Date: 01 September 1910
• Citation: 87 S.C. 44,68 S.E. 817
• Parties: THOMAS et al. v. LYNCH et al.
• Court: South Carolina Supreme Court

68 S.E. 817

87 S.C. 44

THOMAS et al.

v.LYNCH et al.

Supreme Court of South Carolina.

Sept. 1, 1910.

1. Appeal and Error (§ 1217^*)—Loss or Jurisdiction—Remittitur.

Where the remittitur has been properly sent to the lower court, the Supreme Court loses jurisdiction, so that thereafter neither it nor a justice thereof can make an order in the case.

[EM. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4717, 4718; Dec. Dig. § 1217.*]

2. Appeal and Error (§ 1218*)—MotionsNotice.

Even if the Supreme Court or a justice thereof had jurisdiction after the remittitur had been sent to the lower court, a motion to recall it could not be entertained; notice of motion and the affidavits on which it is based not being' served on the opposite party, as required by Supreme Court Rule 19.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. § 4719; Dec. Dig. § 121&*]

Action by B. C. Thomas and another against Z. C. Lynch and another. Defendants, whose appeal was dismissed, move to recall the remittitur. Motion dismissed.

See, also, 85 S. C. 529, 67 S. E. 1135.

J. W. Ragsdale, for the motion.

HYDRICK, J. During the April term of the Supreme Court, a motion was made to dismiss the appeal herein on the ground, amongst others, that appellants had failed to file with the clerk the printed copies of the "case" within the time required by the statutes and rules of the court. By an order filed April 20, 1910, the court refused the motion on terms, amongst others, that the attorneys for appellants should have the case ready for hearing by June 1, 1910, so that it might be heard at that term and at such time after June 1st as the court should direct. Thereafter the court set the case for hearing on June 2d. Upon the call of the case, on June 2d, the attorneys for appellants failed to appear, and it having been made to appear to the court that they had failed to file with the clerk their printed points and authorities, as required by rule 8, an order was passed dismissing the appeal on the ground that the former order of the court had not been complied with, and for want of prosecution. The remittitur was seut down on June 16th. The court adjourned for the term on June 17th.

This is an ex parte application made to me at my chambers on August 23, 1910, for an order recalling the remittitur, and reinstating the appeal, and enjoining the sheriff of Florence county from enforcing the execution until the appeal can be heard on its merits. Rule 20 (19 S. E. v) of the Supreme Court provides that the remittitur shall not be sent to the court below until 10 days after the final determination of the cause, unless the court direct otherwise; and, when a decree or order shall be affirmed or an appeal dismissed by default of appearance by appellant, the remittitur shall not be sent to the court below, unless the court direct otherwise, until 10 days after notice of the affirmance or dismissal shall have been served on the attorney of the party in default, and that, upon application to either of the justices at chambers, an order may be granted for a further stay of the remittitur for such time as he may deem proper, not beyond the third day of the next ensuing term. The manifest purpose of these provisions is to give parties and their attorneys ample time and...