Steffens v. Bulwinkle & Co., 48 S.C. 357

Steffens v. Bulwinkle & Co.

48 S.C. 357 | S.C. | 1897

The opinion of the Court was delivered by

Mr. Chief Justice McIver.

This was an action on a money demand to recover the amount alleged to be due on a note, whereby the defendants promised to pay to the plaintiffs a certain sum of money therein specified. The pleadings were made up and the issues joined on the 20th of December, 1895. On the 4th of January, 1896, the plaintiffs, through their counsel, filed in the office of the clerk of the Court of Common Pleas for Charleston County the summons and complaint in the action, with the following endorsement thereon: “Issue of fact. Place on Calendar 1. Trenholm, Rhett & Miller.” The clerk, however, failed to docket the case until the 2d of March, 1896, the day appointed by law for the opening of said Court, on which day, by the verbal direction of his Honor, Judge Benet, the presiding Judge at that term, the case was docketed by the clerk on the proper calendar. These directions by Judge Benet were given upon the application of the attorneys for plaintiffs, based upon an affidavit setting forth the fact that the summons and complaint, with the endorsement thereon above stated, were delivered to the clerk on the 4th of January, 1896, and that the clerk acting at that time “failed to file and docket said cause as requested.” This applica: tion to and verbal order of the Judge were made without notice to or knowledge of the attorneys for defendants, and the order was made “without prejudice to the rights of the defendants.”

Upon the call of the cases upon Calendar 1 at the March term of the Court of Common Pleas for Charleston County, in the year 1896, the defendants’ attorneys moved to strike this case from the docket, on the ground that it had been improperly placed thereon. This motion was refused by an order of Judge Benet, bearing date 23d March 1896, which was subsequently amended by another order, bearing *361date the 26th March, 1896. To this order, the attorneys for defendants noted the exceptions set out in the “Case.” The case was called for trial during the same term, to wit: on the 8th of April, 1896, when attorneys for defendants, before the pleadings • were read, renewed their motion to strike the case from the docket, on the ground that the same was improperly entered thereon; and that motion being refused, they moved for a continuance of the cause, which was likewise refused, to all of which exceptions were duly taken. The trial then proceeded, and resulted in a judgment in favor of the plaintiffs. From this judgment, as well as from the previous orders in the cause, defendants appeal upon the several grounds set out in the record. The amended order of Judge Benet, together with the exceptions thereto, as well as the grounds of appeal, should be incorporated in the report of the case.

1 Practically, there is but a single question presented by this appeal, to wit: whether the case can be regarded as properly docketed for trial, at the term of the Court commencing on the 2d of March, 1896. This depends upon the proper construction of the first paragraph of sec. 276 of the Code of Procedure, which, as set forth in Rev. Stat. of 1893, reads as follows: “In all issues to be tried by the court or a jury, the plaintiff shall, at least fourteen days before court, file in the clerk’s office the summons and complaint in the cause, endorsing thereon the nature of the issue and the number of the calendar upon which the same shall be placed; and if the plaintiff fail so to do, the defendant, seven days before the court, may file copies of said papers with a like endorsement, and the clerk shall thereupon place said cause upon its appropriate calendar, and it shall stand for trial without any further notice of trial or notice of issue” — the balance of the section not being pertinent to the present inquir}'. It may be noted here, however, that in the compilation of the Code of Procedure as a part of the Rev. Stat. of 1893, an important word — “forthwith”—is omitted in sec. 276, for in the act *362of 1887, 19 Stat., 836, amending section 276 of the Code, as it appeared in the Gen. Stat. of 1882, it is provided that the clerk, after the summons and complaint, with the required endorsement, are filed in his office, “shall thereupon forthwith enter said causé upon its appropriate docket, and it shall stand for trial without any further notice of trial or notice of issue.” It must also be remembered that in the Code, as originally adopted, the provision in regard to notice of trial required that the notice of trial should be given by the party who desired a trial, but this provision was subsequently amended, first by the act of 25th November, 1873, XV. Stat., 498, and next by the act of 1887, above referred to, which contains the law as it now stands. And as is well said by Mr. Justice Jones, in the case of Bank of Camden v. Thompson, 46 S. C., at page 502: “The scheme of the Code of Civil Procedure in this section evidently is that, in lieu of former notice of trial, cases shall be docketed on their appropriate calendars as soon as filed and endorsed as 'required, and if so docketed at least fourteen days before court, they stand for hearing at the ensuing term of court without other notice. The filing and endorsing are prerequisite for docketing, bu.t the docketingfourteen days before court is the notice of trial (italics ours). Any one interested, by consulting the dockets or calendars of the court, open to his inspection, may know, at least fourteen days before court, what causes stand for trial, and not be taken by surprise.” Under this authoritative construction of the statute, it is obvious that no notice of trial, such as required by statute, was given in this case, and hence it did not “stand for trial” at the term of the court commencing on the 2d of March, 1896. Consequently, the Circuit Judge erred in ruling otherwise.

2 The cases cited by respondent’s counsel do not apply. In Brown v. Buttz, 15 S. C., 488, no such question as is here presented arose. In that case, the clerk, by mistake, docketed the case on Calendar 2 instead of Calendar 1, as was intended, and when the mistake was discov*363ered, after the juries had been discharged, the. case was transferred to Calendar 1, upon which calendar the defendant made a motion to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, which was granted. It does not appear, in the report of the case, that any objection was made to the hearing of this motion upon the ground that a notice of trial had not been given, but, as we infer from plaintiff’s first ground of appeal, the ground taken was that such a motion could not be heard “before the trial of the case and without notice to the plaintiff.” In response to this position, the Court said: “It was a preliminary motion, and necessarily preceded the trial, and could be heard as well in the absence of the jury as if they were present.” The case of Davidson v. Middleton, 3 Rich., 349, having been decided prior to the adoption of the Code, when there was no statute requiring a notice of trial, is manifestly inapplicable. In Armstrong v. Austin, 45 S. C., 69, no such question as that which is here presented arose. There the question was, whether the fact that the mortgage there in question, though recorded, was not indexed, defeated its effect as notice under the recording act. The Court held that, inasmuch as the act did not make indexing a part of the required recording, it was not necessary, to the validity of the recording, that the book in which it was recorded should be indexed, the Court saying: “There is nothing in the statute making the indexing an}'- part of the recording; and, therefore, the failure of the officer to perform a duty imposed upon him by a separate statutory provision, while it may subject him to an action, at the instance of a party who may .suffer at his default, yet cannot affect the validity or effect of the recording.” Here, however, as we have seen, it is the act of the clerk which gives -the notice of trial, and if that act is not done, then no notice of trial has been given. If it had appeared, in the case of Armstrong v. Austin, that the mortgagee had delivered- his mortgage to the clerk for record, and the clerk had neglected to record it, and the Court had *364ruled that the failure of the clerk to perform his duty should not operate to the prejudice of the mortgagee, then that case would have been more analogous to the case under consideration; but no such fact appeared, and no such ruling was made in that case, and it is not, therefore, applicable.

The judgment of this Court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.