| S.C. | Mar 9, 1876
Lead Opinion
The opinion of the Court was delivered by
The verdicts obtained in these cases were by due process of law, as all the rules and formalities incident to obtaining proper and legal verdicts were complied with.
By these verdicts the appellants obtained rights which cannot be taken from them except they be made parties to the action which seeks to divest them of such acquired rights. The verdicts could only be disturbed by some direct proceedings to that end, on proper motion.
The appellants or their representatives should have had due notice of such motion and the grounds upon which it was to be based, and all the rules of procedure provided by law in reference to new trials should have been complied with. — Ingram vs. Belk, 2 Rich., 3.
It is clear from the record in these cases that there was neither “mistake, inadvertence or excusable neglect.” All the parties to the action were properly represented; hence Section 197 of the Code has no application to them.
The order of reference in these cases is erroneous, for, if carried into execution, it would deprive the parties of a trial by jury, which the appellants claim, and which they are entitled to by the Constitution of the State.
It is claimed that the appellants have no standing in this Court, for the reason that they did not move the Court below to set aside the order setting aside and vacating the verdicts in the several cases, and the case of Earle vs. Stokes (5 S. C., 336,) is cited as authority.
In that case the appellant, Stokes, was ordered by the Court to do a certain act, which act he refused to do, and treated the order made by the Court as a nullity.
For such disregard of the order he was attached for contempt, and from that (the second order) he appealed, and it was held by this Court that where an order is made by the Court of Common Pleas in term time, though irregularly made, it cannot be treated as a nullity.
When the Court of Common Pleas makes ah order, as prescribed or mentioned by Section 11 of the Code, an appeal from such an order may be taken, and the party aggrieved by such order is bound to take notice of it, whether it be regularly made or otherwise, if the judgment of this Court upon it is desired.
Notice may be taken of such order by motion to set aside or by appeal directly from it.
It is stated by counsel for respondent that the action of the Court below in setting aside and vacating the verdicts rendered in these several cases was “based upon information derived from an investigation directed by the Court to be made by the committee of the grand jury and their assistant,” and such “assistant” of the grand jury was appointed by the Court.
It is an unheard-of practice for a Court of justice to appoint an assistant to the grand inquest of a County. It is a practice without precedent, warrant of law or foundation in justice, and should not be sustained.
Concurrence Opinion
I concur in the judgment of the Court upon the ground that the order appealed from was erroneous for want of proper notice to the parties prejudiced by it and an opportunity to be heard in opposition to it.