14 S.C. 104 | S.C. | 1880
The opinion of the court was delivered by
This is an appeal from an order granting a new trial. A preliminary objection is taken to the appeal, on the ground that no assent on the part of the appellant is contained in the notice of appeal, to the effect that if the order be affirmed, judgment absolute shall be rendered against the appellant, in accordance with sub-division 2, Section 11, of the code, and that, as a consequence of such omission, the appeal is not effectual for any purpose and should be dismissed. To this objection the appellant replies that the order for a new trial, appealed from in the present case, was made upon a motion heard upon the minutes of the Circuit judge, and is not, therefore, an order granting a new trial on a case made or a bill of exceptions, within the meaning of the proviso in sub-division 2, Section 11.
That portion of sub-division 2, Section 11, directly involved, is as follows: “But no appeal to the Supreme Court from an order granting a new trial, on a case made or a bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant that if' the order be affirmed judgment absolute shall be rendered against the"appellant.” It is essential to the understanding of the purpose of this proviso, affecting the power of the court to entertain •such appeals, to read, in connection with the foregoing citation, the provisions that immediately follow it, viz.: “Upon every •appeal from an order granting a new trial on a case made or on exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant.”
There are two possible readings of that part of Section 11 under immediate consideration. According to the first, no assent can be demanded unless the order appealed from was made upon a motion heard upon a case or bill of exceptions. This is the construction for which the appellant contends, urging that the
The grammatical construction of the language quoted, aided by the punctuation of the text of the code, as it appears in the general statutes, (page 564), admits, to say the least, the possibility of the reading last above indicated. The words, “ on a case or bill of exceptions,” act as a condition or other qualification of some antecedent phrase. As such they do not, in a grammatical sense, necessarily qualify their immediate antecedent, so as to become a definition of the hind of order that is subject to the proviso under consideration; but they may, without forced construction, qualify the prior antecedent, in this sense having the effect of enlarging rather than narrowing the sense of that which they affect, by including all appeals from orders granting new trials, both such as are brought into the Appellate Court upon a case and upon a bill of exceptions. It is perfectly consistent that a member of a sentence, limiting the scope of a precedent, general direction should be followed by one giving 'the greatest amplitude to that direction consistently with such limitation; and had such been the intention of the legislature, the mode adopted is a proper and customary mode of giving expression to such intention.
Punctuation is the least reliable guide to the sense of a statute, but cannot properly be said to be without any force. In itself it is ordinarily insufficient to fix the sense of a statute where that is disputable, especially where the question is one of the force of a comma; but when the punctuation is strictly consistent with one of two senses, equally grammatical, and inconsistent with the other, it should be allowed the force of opening the question of
We come now to consider what force, in settling the construction of the words just considered, should be ascribed to the language immediately following them, which declares that " upon every appeal from an order granting a new trial upon a case made, or on exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant.” Construing this clause as if it was an independent provision, it becomes necessary to inquire what cases are embraced within it. The important words here differ from those in the preceding provision; there the expression was “ on a case made or bill of exceptions;” here the expression is, “ on a case made or exceptions taken.”
Both of these expressions, “ on a bill of exceptions,” and “ on exceptions taken,” are familiar to the courts of common law, and have been so from time immemorial. Until the recent act on the subject, exceptions Avere always taken at the trial. They were usually taken orally, but might be taken in Avriting. The taking of an exception before the jury left their seats, Avas an act incident to the trial that laid the foundation for a bill of exceptions. The bill of exceptions was a formal statement for the purposes of a Avrit of error or appeal to a court possessing the proper juris
By Section 288 of the code, the use of the bills of exceptions is dispensed with, in terms, and the practice substituted of stating the exceptions that had been taken at the trial in a case containing so much of the evidence as might be necessary to show the bearing and force of the exceptions there taken. The direct meaning, then, of the clause of the section last quoted is, that whenever an exception has been taken at the trial, and an order granting a new trial has been made, based on such exception, the Supreme Court, on appeal, in determining that no error of law is involved in such exception, must give judgment absolute. The act of 1878 (16 Stat. 698) extends the right of taking exceptions for ten days after the trial, but this does not change the nature ■of an exception or the substantial sense of what is meant by ■talcing an exception.
A motion in the Circuit Court for a new trial, after a verdict on an action in the nature of a suit at law, may be made either upon exceptions taken at the trial or without any such exception on certain other familiar grounds. An order for that purpose can be reviewed in this court only so far as it rests on exceptions taken at the trial. This is equally true where the motion for the new trial is made upon the minutes of the judge, as where made on a case formally prepared for that purpose. If, then, a motion for a new trial is made at the Circuit upon the minutes of the judge, it may rest, wholly or in part,,on exceptions taken at the trial, or it may rest altogether on grounds independent of any exception taken. If it rests in whole or in part on exceptions taken, then it is capable of being reviewed on appeal in this court to the extent that it involves the matter of exceptions taken. If granted on grounds other than those embraced in exceptions, it cannot be reviewed on appeal in this court, except in a case, not supposable, of being granted on grounds that in themselves could not justify the granting of a new trial in any case. Therefore every order granting a new trial that is appeal-able to this court is, necessarily, an order on exception taken, and thus within the description of those cases in which this court must render judgment absolute upon the right of the appellant.
Even if the considerations already advanced do no more than place the reading already suggested on grounds of probability, yet when the purpose of the provision is considered with reference to its reason, that probability must be resolved into certainty.
It must be concluded that the notice of appeal was irregular and the appeal should be dismissed. The counsel for appellant upon the argument, expressed a desire that in the event that the notice of appeal should be adjudged defective he might be allowed to amend. Such application for amendment should be made in writing' and upon due notice, but in the present case, even if made in proper form, the court having looked into the papers and become satisfied that there is no merit in the appeal, can see no ground for the exercise of its discretion by allowing the amendment asked.