152 S.E. 815 | S.C. | 1930
April 17, 1930. The opinion of the Court was delivered by This is an appeal from an order of his Honor Judge Grimball, dated December 4, 1929, refusing a motion by the plaintiff, appellant, for an order permitting him to perfect his appeal from a judgment in favor of the defendants under Section 649 of the Code Civ. Proc.
The facts are these:
In August, 1921, the plaintiff brought an action against the defendant Hall and others, "for trespass and for damages and to try title to water power and dam and easements, on Chinquepin Creek." The defendant Hall claimed title and set up a counterclaim for damages resulting from the plaintiff's trespass.
The case was tried before his Honor, then Special Judge Ramage, and a jury, in November, 1923; the trial resulted in a verdict in favor of the plaintiff. Upon appeal the judgment was reversed, and a new trial was ordered,
I do not think that his Honor, Judge Grimball, had jurisdiction to entertain such a motion, as the section referred to provides explicitly that such a motion can be made only within the time allowed within which to serve the proposed case and the cases construing that section specifically so hold. Stribling v. Johns,
In the Deal case the Court said: "It has been held that, after the time for the service of the case and exceptions has expired, the Judge has no jurisdiction to extend the time" — citing cases.
The only remedy that a defaulting appellant has, is to apply to this Court under Section 650. *76
The order was therefore coram non judice and should be reversed.
I think it proper to observe that, under the circumstances, the appellant was under no obligation to procure an order of any kind; he was not subject to the penalty of the rule requiring him to serve his proposed case within 30 days after notice of appeal, until after judgmenthad been entered up against him, which was not done in this case until October 12, 1929, and his proposed case was served upon that day.
In Bank v. Gary,
And in Molair v. R. Co.,
And in American Publishing Engraving Co. v. Gibbes,
For these reasons I think that the order appealed from should be reversed. It is so ordered.
MESSRS. JUSTICE BLEASE, STABLER and CARTER concur.
MR. CHIEF JUSTICE WATTS did not participate.