In re Estate of Perry

42 S.C. 183 | S.C. | 1894

The opinion of the court was delivered by

Mr. Justice Gary.

The appeal in this case is from a decree of his honor, Judge Izlar, upon two exceptions based upon his findings of fact. The testimony is not set out in the Case, but the following agreement of counsel is contained therein: “We agree to the foregoing case, and consent that it shall constitute the return for the purpose of appeal to the Supreme Court; and that a copy of the testimony, together with the receipts, accounts, the statements, the deeds, the decree of the Probate Court, and all other papers sent to the Circuit Court by the Probate Court, be filed with the clerk of the Supreme Court for reference by either party. No other paper will be required to be served or required to perfect the appeal.”

1 Subdivision 5 of section 345, Code, provides that, “upon appeals to the Supreme Court, in case the attorneys for the appellant and respondent shall agree upon a statement of the case as prepared by them for the hearing of the Supreme Court, such statement of the case shall be a sufficient brief of the same, and no return or other paper from the Circuit Court shall be required.” We do not think this case comes within tbe provisions of that section. The “statement of the case” should contain within itself all that is necessary to be considered by the Supreme Court upon the hearing of the case on appeal, and this requirement is not fulfilled by the “statement of the case,” referring to papers and records filed with the clerk of this court. It is not shown by anything set forth in the “statement of the case” that thefindings of fact by the presiding judge were without any testimony to support them, or against the manifest weight of the testimony.

It is the judgment of this court, that the judgment of the court below be affirmed.