Warren v. Wilson

• Decision Date: 06 June 1911
• Parties: WARREN et al. v. WILSON.
• Court: South Carolina Supreme Court

71 S.E. 513

89 S.C. 108

WARREN et al. v. WILSON.

Supreme Court of South Carolina

June 6, 1911

Action by G. L. Warren and others against P.J. Wilson. From a judgment for defendant, plaintiffs appeal. On motion to dismiss appeal. Denied.

PER CURIAM.

This is a motion to dismiss the appeal herein on the ground that no case with exceptions was served within 30 days after notice of intention to appeal. The action was for the recovery of real estate, and the verdict was for the defendant.

Judge Watts made his order refusing a new trial on February 18 1911, and notice of intention to appeal from this order and the judgment rendered in the case was served on February 23 1911. Proposed case with exceptions was served by the sheriff on April 10, 1911, 44 days after notice of intention to appeal. Section 345 of the Code of Procedure requires that case, with exceptions, be served within 30 days after notice of appeal. Section 348 provides that the circuit judge who heard the cause, or any one of the justices of the Supreme Court, upon four days' notice, may extend the time for taking any proceeding in the perfection of an appeal, except the time of giving notice of appeal. Relief under this section requires that notice of motion for extension of time be given before the expiration of the time limited, which was not done in this case. However, sections 339 and 349 provide that the Supreme Court in its discretion may permit acts to perfect an appeal out of time omitted to be done through mistake or inadvertence, if satisfied that the appeal was taken in good faith, and notice of appeal was given in due time. The requirement of section 348 that notice of motion to extend time must be given before expiration of the time limited does not apply, when the application is to the Supreme Court. In determining whether to dismiss the appeal for failure to serve case and exceptions in time, this court will consider whether the excuse offered by the appellant in opposition to the motion is such as would move the court to grant an extension of time to perfect the appeal. The appellant explains his delay in serving proposed case and exceptions on the ground that, after diligence, he was unable to procure the stenographer's report of the charge and testimony in time, and upon the further ground that on March 21, 1911, he discovered for the first time that respondent had not entered judgment in the case, whereupon he concluded...