57 S.C. 44 | S.C. | 1900
Lead Opinion
The opinion of the Court was delivered by
This action was originally instituted before a magistrate, and the following statement appears in the case: “The magistrate rendered judgment in this case on June 30th, 1898, in favor of plaintiff and against the defendants. On July 4th,'1898, the defendants, in the absence of, and without any notice to, the plaintiff, made a motion for a new trial, and the magistrate entered the motion in his docket. The defendants on the next day gave plaintiff verbal notice that said motion had been made. On November 19th, 1898, said motion was argued before the magistrate by both parties. That plaintiff contended that the magistrate had no power to entertain the motion and grant a new trial, because no notice had been previously given that a motion for a new trial would be made, and on this ground maintained that the motion should be overruled. The magistrate ruled against the plaintiff on this point, and the plaintiff excepted to the ruling. After the argument the magistrate reserved his decision until November 30th, 1898,” when he made an order granting the motion for' a new trial. From this' order plaintiff appealed on five grounds. The Circuit Court passed upon only two of these grounds- — the second and third — -which are as follows- — the
While it is quite true that there is nothing in the “Case” as prepared for argument here which would warrant the use of the language in the Circuit decree which is objected to in the first exception, this language was no doubt used by the Circuit Judge because of something said by counsel in the course of the argument’ before him, and we do not see that there was anything prejudicial to appellant in using it — rather the contrary. The first exception may, therefore, be passed over without further remark, as it presents no material question in this appeal.
The judgment of this Court is, that the judgment of the Circuit .Court be reversed, and the case be remanded to the magistrate for a new trial at such time and place as he may appoint, of which due notice must be given to both parties.
Concurrence Opinion
I concur in the result only, as the case of Bank v. Gary, 14 S. C., is no longer law in this State in the matter of notice, and I do not care to commit myself to notices in magistrates’ courts being made verbally.