Same v. Same, 39 S.C. 553

Same v. Same

39 S.C. 553 | S.C. | 1893

The following order was passed

Per Curiam.

This is a motion to recall the remittitur heretofore sent down from this court to the Circuit Court, whereby the judgment of this court, dismissing the appeal in this case, was remitted to the Circuit Court. The ground upon which this motion is based is excusable delay in perfecting this appeal. In order to justify this court in exercising the unusual power of recalling the remittitur after it has been sent down, a very strong showing would be required that the remittitur was sent down through some mistake or inadvertence on the part of this *554court or its officer, and there is no pretense of any such showing-in this case. It is not enough to show that the default of the appellant in perfecting his appeal was due to some excusable neglect; for the proper time to make such a showing would be when the motion to dismiss the appeal was made, or at least before the remittitur was sent down. We may add, however, that after a careful examination of the affidavits and counter-affidavits submitted at the hearing of this motion, we do not think that the showing would have been sufficient to j ustify this court in reinstating the appeal, even if the motion had been made at the proper time. Besides, it is more than questionable whether this court has the power to recall the remittitur after it has been sent down to the Circuit Court, and acted upon by that court, which, as we are informed on the argument here, was the fact i n this case. But as that point does not necessarily arise in this case, we are not to be regarded as definitely deciding it now. The motion to recall the remittitur and to reinstate the appeal is, therefore, refused.