45 S.E. 83 | S.C. | 1903
July 3, 1903. The opinion of the Court was delivered by
This appeal is from an order of the Circuit Court correcting taxation of costs by the clerk. After the judgment of this Court was rendered in this case,
We think the Court committed error in so holding. The act in question provides: "That from and after the passage of this act, when an appeal is taken to the Supreme Court of this State, the following costs shall be allowed in all classes of cases, legal or equitable: for plaintiff's or defendant's attorneys for making and serving a case or a case containing exceptions, $10 * * *; on argument in the Supreme Court, $25." Approved February 20, 1901 (23 Stat., 620). If the appeal was taken when the notice of intention to appeal was served in June, 1900, the act would not apply, but if the appeal was not taken until the filing of the agreed case or return in November, 1901, the act would apply. The question, then, is: when is an appeal taken to the Supreme Court in the sense of this statute? We think such an appeal is "taken" when notice of intention to appeal is served, as required by law. In 2 Ency. Pl. and Prac., 237, it is stated: "An appeal is taken where a legal condition is performed which terminates the running of the statute limiting the time for taking it * * * Under Code practice, an appeal is taken by serving and filing the notice of appeal." An examination of the statute, the rules of Court and the decisions of this Court will show that the expressions, "notice of intention to appeal" and "notice of appeal," are used interchangeably and mean the same thing. Sec. 339, Code Civil Procedure, provides that an appeal from an order, judgment or decree, must be made by the *541
service of a notice in writing stating the appeal from the same, and further provides that when notice of appeal is given in good faith, the Court may permit amendment necessary to perfect the appeal. Sec. 345 provides the time within which such notice of appeal, or notice of intention to appeal, must be given, viz: within ten days after written notice of the order granted, or decree or judgment rendered, from which appeal is taken, and in other cases within ten days after the rising of the Circuit Court. After such time no appeal can be taken, and Courts have no power to extend the time within which the notice of appeal must be served.Renneker v. Warren,
The judgment of the Circuit Court is reversed, and the taxation of costs as made by the clerk is approved. *542