Wallace v. D.C. & G. R. Co

• Decision Date: 30 April 1892
• Citation: 15 S.E. 452,36 S.C. 599
• Court: South Carolina Supreme Court
• Parties: Wallace v. Columbia & G. R. Co.

15 S.E. 452

36 S.C. 599

Wallace

v.Columbia & G. R. Co.

Supreme Court of South Carolina.

April 30, 1892.

Appeal—Notice—Dismissal—Settlement of Case.

1. A party intending to appeal is not obliged, under a statute requiring merely that notice shall be given within 10 days after the rising of court, to await the time allowed for entry of judgment, but may appeal from the verdict before judgment is entered.

2. The fact that a "case" served upon a party on appeal does not, owing to the other engagements of the stenographer, contain the testimony, but only a statement showing that the testimony was to be inserted, Is not ground for dismissal of the appeal, although it might be ground for a motion to recommit for further settlement.

Appeal from common pleas circuit court of Fairfield county; Fraser, Judge.

Motion by John Wallace to dismiss the appeal of the Columbia & Greenville Railroad Company in an action in which the said Wallace was plaintiff and the Columbia & Greenville Railroad Company was defendant. Refused.

The notice and affidavit are as follows:

"Please take notice that upon all the proceedings and pleadings and the annexed affidavit the undersigned will move before the supreme court, on Tuesday, the 19th of April, or as soon thereafter as counsel can be heard, for an order dismissing the appeal in the above entitled cause, on the following grounds: (1) Because no proper notice of appeal has been taken by the defendant since the entry of the judgment in the case. (2) Because the appellant has neglected to serve the case as settled' on the respondent, as provided by the rules of this court. (3) Because the appellant has neglected to file the proper return, as provided by the rules of this court. (4) Because the appellant has undertaken to disregard the order of the circuit judge in settling the case, and to have the appeal heard upon a case never served upon the counsel for the respondent."

"Personally appears before me E. B. Ragsdale, who, being duly sworn, says: (1) That he is one of the counsel for the respondent in the above-entitled cause. (2) That the notice of appeal was served before the judgment was entered, as appears from a reference to the 'case containing exceptions, ' prepared by counsel for appellant, to wit, on the 1st day of Oct.. 1891.

(3) That counsel for appellant waited until the 30th day of October, 1891, to serve a proposed 'casecontainingexceptions, 'and then served only a skeleton of a case, which is herewith submitted. (4) That thereafter the counsel for appellant printed the 'case containing exceptions, " upon which they now seek to have the appeal heard, and inserted therein matter which was never served upon the counsel for the respondent, and which, therefore, they have had no opportunity to challenge, correct, or amend. That, after the service of the manuscript case above referred to, objections were taken to it by counsel for respondent, and the matter was referred to his honor, Judge Fraser, for settlement, and his honor passed an order settling the case, and thereafter counsel for appellant printed the case, upon which they now seek to have this appeal heard, and inserted therein additional matter, never served upon counsel for respondent, and wholly unauthorized by the said order of Judge Fraser settling the case. E. B. Ragsdale. Sworn to before me, this 7th day of April, 1892. R. H. Jennings, C. C. P."

J. S. Cothran, B. L. Ahney, and J. P. Thomas, Jr., for appellant.

Ragsdale & Ragsdale and McDonald, Douglass & Obear, for respondent.

Per Curiam. The...