27 S.C. 156 | S.C. | 1887
The opinion of the court was delivered by
This case was originally commenced in a trial justice’s court, where judgment was rendered in favor of the plaintiff against the defendant, Williams, alone, who appealed therefrom to the Court of Common Pleas, “on the ground of the manifest injustice done this defendant, and those set out in writing, made on the motion for a new trial before the trial justice and the affidavits there used in behalf of said motion, and all the evidence and records in the case.” That appeal was heard by Judge Kershaw, and he granted an order sustaining the appeal and remanding the case to the trial justice for a new trial. The present appeal is from the order of Judge Kershaw, and is based upon the following ground: “Because the court erred in refusing to dismiss the appeal from, and affirm the judgment of, the trial justice on the ground that the notice of appeal failed to state the grounds upon which the appeal was founded.”
It seems to us that the insuperable obstacle in the way of the
But as we are always averse to deciding a case upon what would even seem to be a technical point, we will, ex gratia, consider the question presented by the appeal. Assuming, then, that a motion to dismiss the appeal from the trial justice, upon the absence or insufficiency of the statement of the grounds of appeal, had been made and refused, or that the question was otherwise properly made and decided against the view of the present appellant, we do not see that there was any error in such decision. It is true that under section 359 of the Code, the appellant in the judgment rendered by the trial justice is required, within a prescribed time, to serve his notice of appeal, “stating the grounds upon which the appeal is founded,” but we do not find that the manner in which such statement shall be made is anywhere prescribed either by statute or rule of court in that tribunal. And when we
In this case such is really the character of the objection to the grounds of appeal from the judgment of the trial justice. For it will be observed that the ground stated is not merely “the manifest injustice” done the defendant, but also “those set out in writing made on the motion for a new trial before the trial justice.” This was the same thing as if the grounds of the motion for a new trial had been incorporated in the grounds of appeal. What the grounds of the motion for a new trial were, the “Case” as prepared for argument here does not show, and we certainly cannot assume, in the absence of any showing to that effect, which it is incumbent on the appellant to make, that the statement therein was insufficient. But we must assume that the grounds of the motion for a new trial, which were referred to in the grounds of appeal to the Circuit Court, and adopted as a part thereof, were before Judge Kershaw, because by sections 358 and 362 it is made the duty of the trial justice to make a return to the Circuit Court of “the testimony, proceedings, and judgment,” which, of course, would include the grounds of the motion for a new trial, and section 367 provides that the appeal shall be heard upon these papers, and in the absence of any evidence to the contrary, we must presume that the trial justice performed this duty. The fact that the grounds of the motion for a new trial were not actually incorporated into the grounds of appeal, but simply referred to and adopted as a part of the grounds of appeal, can make no difference — certainly not in appeals from the judgment of a trial justice. For even in appeals to this court such a practice prevailed and was recognized, until it was forbidden by a recent rule of this court. But there is no such rule applicable to appeals from a trial justice.