CASE No. 1099 | S.C. | Oct 8, 1881
The opinion of the court was delivered by
It appears that the plaintiff recovered judgment against the defendant for $200, for backing water and overflowing his land, and entered judgment and execution for the verdict with $92 costs taxed by the clerk. After the execution had been paid, April 18th, 1879, the plaintiff’s attorney moved to tax certain costs which had been omitted in the first taxation, and the clerk taxed $64.80 additional costs. The defendant made a motion to reverse the decision of the clerk in allowing the additional costs, before Judge Aldrich, who sustained the clerk’s taxation and refused the motion. From this order notice of appeal was given within ten days, but the case was not prepared and served within the “thirty days” allowed for that purpose. On September 12th, 1879, nearly three months after the order appealed from was granted, a motion was made before Judge Aldrich, at chambers, for an extension of time within which to perfect this appeal. Upon this motion, affidavits and counter-affidavits were submitted. Judge Aldrich, without undertaking to decide between the conflicting statements of the affidavits, refused the application for the extension of time principally on the ground that it “came too late.” The defendant appeals to this court, and the plaintiff moves to dismiss the appeal.
It does not appear that the items of costs taxed by the clerk were improper. The objection, it seems, was that the plaintiff was in default in not having them included in the first taxation. Judge Aldrich decided otherwise, and in perfecting his appeal from that order, the defendant, in his turn, fell into default. The judge refused to grant further time to perfect the appeal.
The second section of the act of 1878 (16 Stat. 698) provides as follows: “Within thirty days after such notice, the appellant, or his attorney, shall prepare a case or exceptions, and serve them, unless the judge before whom the cause was heard last, on ten days’ notice to the opposite party, upon sufficient and reasonable cause shown, shall extend the time,” &c.
It will be observed that the act gives the power to extend the time only to the judge “before whom the cause was last heard.” It was exclusively within his province to decide whether the cause shown was “sufficient and reasonable.” The case was not difficult to prepare, and could not require much time or labor. The defendant having failed to prepare and serve a case within the time prescribed, was in default, and his application was based, not upon any right upon his part that he had lost, but was addressed solely to the judicial discretion of that officer. So far as he decided the application upon the facts stated in the affidavits, his decision was final, and there can be no appeal. To say that a matter is in the discretion of the judge is but another way of saying that it is beyond control. It is analogous to an order refusing a new trial on the facts. This court has no right, in cases of this kind, to consider any question except alleged errors of law.
In regard to the jurisdiction of the judge to hear the application after the expiration of the thirty days allowed, we concur with him that the act which grants the privilege to make the-application contemplated that it should be done within the thirty days. The object, manifestly, was to prevent unnecessary delay in the prosecution of appeals. If the application for further time could be made three months after the appeal was taken, what could prevent its being done three years after ? It could not be known certainly when an apjDeal was ended. The act clearly indicates that if, at the expiration of the time fixed, the appellant is in default, having neither perfected his appeal nor made application for further time to do so, his appeal should be considered waived. The last section declares that “when the appellant shall fail to perfect his appeal according to the provi
The judgment of this court is that the order of the Circuit judge be affirmed, and the appeal dismissed.