34 S.C. 160 | S.C. | 1891
The opinion of the court was delivered by
The plaintiff brought this action before a trial justice to recover the value of certain articles of personal property, which she alleged had unlawfully been taken from her by defendant. The defence was that the articles in question had been seized under a distress warrant issued to enforce the payment .of rent in arrear of a certain dwelling house in the city of Greenville, which defendant alleged had been leased from him
This appeal was heard by his honor. Judge Izlar, upon the testimony taken by the trial justice, his report of the case (all of which is set out in the “Case”), and the defendant’s exceptions, there being no exception by either party to the finding of fact by the trial justice that the agreement for the rent of the premises was made by the plaintiff. Upon the hearing of this.appeal, the judge granted an order in these words : “That the finding of the trial justice be confirmed, and that the appeal be dismissed.” The defendant supposing, as he says, that the Circuit Judge had affirmed the findings of the trial justice, both of fact and law, gave notice of appeal to this court upon numerous grounds set out in the record, which, however, practically make the same question raised by his appeal from the judgment of the trial justice.
The practical question, therefore, is whether the words italicized in the clause just quoted have the effect of confining the
It is true that section 368 of the Code does provide that “upon hearing the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits,” but we cannot regard this matter as technical. It is certainly a very material matter that parties should be advised of the nature of the case which the court is called upon to determine and of the questions therein involved. In an appeal those questions are presented by the exceptions, and, in this case, it is manifest that the only question presented by the defendant’s appeal from the
Believing, as we do, that the only proper solution of this somewhat anomalous case is to order a new trial without prejudice, we have been careful to avoid any indication of opinion as to either of the questions mentioned above ; for it is quite clear that, under the “Case” as amended, the question of law does not properly arise under this appeal, as the amendment shows that the Circuit Judge decided that question in favor of appellant; and,