103 S.E.2d 741 | S.C. | 1958
This is a proceeding in ejectment which was brought under Section 41-101 et seq. of the Code of 1952. The case was tried by the magistrate without a jury. He held in a well-considered order, dated July 25, 1957, that the defendant was a tenant from year to year and plaintiff-landlord, having refused to extend the lease after its expiration on July 1, 1957, was entitled to possession and the defendant was ordered to vacate the premises.
Within five days after notice of the judgment of the magistrate (Sections 7-302 and 41-112 of the Code) the attorneys for the defendant served written notice of appeal to the Court of Common Pleas upon the ground, quoting from the notice, “that the court erred in finding that the defendant had a legal right to renew the lease for only one (1) additional year and in failing to find that the lease agreement was an incident to the sale of a liquor business and that the defendant has a right to renew the lease for as many years as he operates the business sold by virtue of the contract in question upon payment of the agreed rental and during the lifetime of the parties to the contract.” (This ground is not preserved in the exceptions on appeal to this court and, therefore, is not for decision here.)
On August 9, 1957, respondent’s attorneys addressed a letter to the circuit judge advising that they and appellant’s attorneys had discussed tentative dates for hearing before him of the appeal; that appellant’s counsel would be away until August 26 and the attorneys had tentatively agreed upon August 28 as a convenient time for the hearing of the appeal; and at the request of appellant’s counsel inquiry of the judge was made as to whether that date would be agreeable to him. The judge replied by letter dated August 15th that the suggested date, August 28, was agreeable and a copy of the judge’s letter was sent by him to appellant’s counsel. Respondent’s attorneys confirmed receipt of the
Appellant’s questions on appeal will be copied from his brief and discussed seriatim.
1. Where no return of the testimony, proceeding and judgment is made and filed in the appellate court by the trial magistrate as required by and within the time prescribed by Sec. 7-306 of the Code of Laws of South Carolina 1952, and is not thereafter made and filed, and the statutory procedure for both bringing the appeal to a hearing and for the actual hearing itself is not followed, can the Court of Common Pleas exercise appellate jurisdiction in an appeal from the magistrate court ?
Appellant had as much to do with bringing the appeal to a hearing before the court as did respondent and is, therefore, not in position to complain. Correspondence between counsel and court has been mentioned ante. No point of the matters referred to in this question was made before the court which heard the appeal upon the order of the magistrate, transcript of the proceedings before the latter, and
There is another consideration which militates for affirmance. If the appeal and proceedings in the circuit court should be held to be of no effect, which seems to be appellant’s contention, the judgment of the magistrate would remain, unaffected by the appeal, and the appellant would be no better off.
2. Did the court err in refusing appellant’s motion for a new trial because the grounds for the motion were not contained in the notice of appeal or were contrary to the grounds stated therein? If so, does the same constitute an abuse of discretion?
■ 3. Did the court err in failing to find in the record a refusal on the part of the magistrate to hear any evidence of the defendant-tenant? If so, does the refusal of appellant’s motion on this ground constitute an abuse of discretion?
The above questions 2 and 3 will be considered together because the only ground of the motion for new trial was the claimed refusal of the magistrate to take the testimony of the defendant-appellant which, it is claimed, would have clarified the terms of the lease. The proceedings before the magistrate are in the record here and, like the circuit judge, we find no ruling of the magistrate that the defendant could not offer testimony. During the
4. Is it essential to an appeal that exceptions to the court’s ruling's be noted during the course of the trial and that all exceptions be contained in the notice of appeal? If not, does the refusal of appellant’s motion for a new trial on this ground constitute an abuse of discretion?
It is unnecessary to determine whether a ground for new trial under Section 7-316 of the Code is unavailable if not
5. Did the court err in refusing to grant appellant a new trial because the record in the lower court, containing only plaintiff-landlord’s testimony, was defective? If so, does the same constitute an abuse of discretion?
The record made before the magistrate, upon which appeal from his decision was heard by the court, cannot be said to be defective because it did not contain testimony in behalf of appellant which he did not offer; he did not even take the stand as a witness or call any other. There was no objection by his counsel to the adjournment of the hearing-before the magistrate. A trial record can hardly be said to be defective which contains a stenographic transcript of all the proceedings before the trial court, as this does.
The exceptions are overruled and the orders appealed are affirmed.