Tribble v. Poore

• Decision Date: 14 May 1888
• Citation: 6 S.E. 577,28 S.C. 565
• Parties: TRIBBLE et al. v. POORE.
• Court: South Carolina Supreme Court

6 S.E. 577

28 S.C. 565

TRIBBLE et al. v. POORE.

Supreme Court of South Carolina

May 14, 1888

Motion to reinstate an appeal.

Motion by James A. Tribble and others to reinstate an appeal dismissed by the clerk for failure to file return within the time prescribed by law. Code Civil Proc. S.C. § 349, provides that where any party shall omit, through mistake or inadvertence, any act or acts necessary to perfect an appeal or to stay proceedings, the supreme court may, where notice of appeal has been given, on such terms as may be just permit such acts to be done at any time, provided the court is satisfied such appeal was taken bona fide.

Graydon & Graydon, for appellants.

Eugene B. Gary, for appellee.

SIMPSON C.J.

This is a motion to reinstate an appeal dismissed by the clerk for failure to file the return within the prescribed time. The motion is made upon two grounds: (1) That the clerk erred in dismissing the appeal, inasmuch as the return was in fact filed within the prescribed time after the record constituting said return had been completed; (2) that if the appellants are in error in supposing that the case, as prepared for argument in this court, was a necessary part of the record constituting the return, such error was the result of an honest mistake, and he therefore asks relief under the provisions of the second section of the act of 1880, (17 St 368,) now incorporated in the Code of 1882 as section 349.

There does not seem to be any dispute as to the substantial facts upon which the first ground is based, for there seems to be no doubt that the return was filed within 40 days after the case, as prepared for argument here, was finally settled, and therefore the precise question presented for our decision is whether such case is an essential part of the record constituting the return. The second rule of this court prescribes what the return shall contain, in these words "When the appeal is from a judgment, the return spoken of in the foregoing rule shall consist of copies of the judgment roll, the notice of appeal, and exceptions," etc. So that the question is narrowed down to the inquiry whether the case, as prepared for argument in this court, is any part of the judgment roll. Section 302 of the Code reads as follows: "Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll [omitting the first subdivision which does not apply to this case:] (2) In all other cases, the summons, pleadings, or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits and necessarily affecting the judgment." Now, although the case is mentioned as one of the papers which may constitute a part of the judgment roll, yet, when it is remembered that the practice under the Code contemplates and provides for a case to be prepared on an application for a new trial, addressed to the circuit court, where such motion is not made on the minutes, as well as a case to be prepared for appeal to this court, it will be necessary to inquire whether the word "case," in this section, refers to the former or to the latter. It seems to us that it refers to the former, and has no application to the latter. It will be observed that the clerk is required, "immediately after entering the judgment," to attach together certain specified papers, among which is the case, which shall constitute the judgment roll; and if the word "case" is construed to mean the case prepared for argument in this court, it would be impossible for him to comply with this requirement; for the appellant being allowed 10 days after the rising of the court, or after written notice of the filing of the decision, to give notice of appeal, and 30 days thereafter to serve the case for appeal, which time may be further extended by notice of amendments and otherwise, it is very manifest that it would be impossible for the clerk to attach such case to the other papers immediately after the entry of judgment, which he certainly could not postpone until the case for appeal was prepared and finally settled. But if the word "case," as used in this section, is construed to mean, as we think it clear it should be, the case prepared for a motion for a new trial, addressed to the circuit court, there would be nothing to prevent the clerk from complying with the requirement; for the judgment could not be entered until the motion for new trial, addressed to the circuit court, had been heard and determined. Again, the latter part of section 302, above quoted, shows that the papers constituting the judgment roll must be such as involve the merits, and necessarily affect the judgment appealed from; and this implies, necessarily, papers leading up to the judgment, and not those prepared after the judgment has been entered. Hence, while the case prepared for a motion, addressed to the circuit court, for a new trial, would be one of the papers "involving the merits, and necessarily affecting the judgment," we do not see how the same could be said of a case prepared for argument in this court, after the judgment appealed from has been entered. Counsel for appellant also relies upon rule 49 of the circuit court to show that the case, as prepared for argument in this court, constitutes a part of the judgment roll; but we are unable to find anything in that rule which sustains such a contention. The first paragraph of that rule (Shand, Man. 76) prescribes the time within which a case must be filed after it has been settled; and the second paragraph simply provides that a failure to file the case within the time prescribed, subjects the appellant to an order declaring the same abandoned. There is no reference whatever to the judgment roll, or to what papers constitute it; and we are unable to find any rule, either of the circuit or supreme court, now of force, which declares that the case, as prepared for argument in this court, shall constitute a part of the judgment roll, or anything which even implies such a requirement. It is true that rule 58 of the circuit court, as originally adopted in 1870, did contain a provision that the case, as settled for appeal to this court, should "be attached to the judgment roll;" but, when these rules were revised in 1879, this provision was not only omitted, but in rule 71 it was expressly declared that "all rules heretofore adopted for the government of the practice of the circuit courts of this state shall be, and they are hereby, repealed." So that now we have no rule which contemplates that the case, as prepared for argument in this court, shall even be...