52 S.C. 428 | S.C. | 1898
This opinion was hied
but remittitur stayed on petition for rehearing until
The opinion of the Court was delivered by
This is an action on a promissory note for $2,500. The defendant admitted plaintiff’s cause of action, and set up as a counter-claim $7,158.72, as damages which resulted to defendant from the unskillful and negligent construction by plaintiff of the canal walls connected with defendant’s cotton mills, which plaintiff had contracted to build in a workmanlike manner, and for which work defendant, unconscious of the imperfections in the construction of said canal walls, had given said note in part settlement.
Appellant contends that the order of Judge Buchanan, extending the tim.e for serving case and exceptions oñ a motion for a new trial before the Circuit Court, was in effect a direction that the motion should be heard at a subsequent term, and that the judgment in the meantime be suspended; therefore, that the judgment entered in this case before the hearing of the motion for new trial is null and void. We can not agree that such is the result. In the first place, appellant by bringing his appeal for a new trial on case and exceptions to this Court, has waived whatever right he had to move the Circuit Court for a new trial on case or exceptions or otherwise, as such a motion could not pend in the Circuit and Supreme Courts at the same time. As this Court will not entertain an appeal from a verdict of a jury, Whitesides v. Barber, 22 S. C., 50, and as appellant has chosen to ask this Court to review the judgment below on exceptions, which have been considered, appellant is estopped to say that such judgment is null and void because entered while a motion for a new trial was pending in the Circuit Court. In view of this appeal, this Court must necessarily and conclusively presume that the motion for a new trial in the Circuit Court has either been abandoned or has been decided adversely to appellant.