Opinion
15315
October 27, 1941.
Before THURMOND, J., McCormick County, December, 1940. Affirmed.
Proceedings by the State against Arthur Patterson and John Baker. From an order denying motions to dismiss State's appeals from adverse orders, defendants appeal.
The order of Judge Thurmond required to be reported, follows:
These matters came before me at my chambers at Edgefield, South Carolina, upon notice of motion in each case made by Joseph Murray, attorney for the respondents in each case. The motion in each of the above cases was made for the purpose of dismissing an appeal theretofore made in each of the above cases. Since the motion to dismiss the appeals in each of the four cases above stated was made upon the identical grounds and upon the same state of facts it was agreed at the hearing of said motion that all four of the cases as far as this motion was concerned would be heard together. Therefore, I am passing only one order in this matter and making it applicable to each of the four cases.
The first case above stated is the case wherein an appeal was taken from an order of Judge Grimball refusing a motion by the State to dismiss an appeal of Arthur Patterson and John Baker from their conviction after the trial Judge had granted an order extending the time for perfecting said appeal.
The second case above stated involves an appeal from an order of the trial Judge granting additional time for perfecting the appeal of Patterson and Baker.
The third case above stated involves the appeal from an order of the trial Judge granting a new trial to John Baker.
The fourth and last case above stated involves an appeal from an order of the trial Judge granting Arthur Patterson a new trial.
It appears that a due and regular notice of intention to appeal was made and served within the time for such notice of intention to appeal by the State through its attorneys in each of the above-stated cases and that thereafter on the 11th day of March, 1940, the attorneys for the appellant served upon the attorney for the respondents a "proposed case for appeal" to the Supreme Court of South Carolina in each of the four cases. That thereafter on the 20th day of March, 1940, the attorney for the respondents served upon the attorneys for the appellant certain proposed amendments to the proposed case for appeal.
It appears that after the proposed amendments were served on the attorneys for the appellant, nothing was done until the motion was made before me on the 13th day of July, 1940, by the attorney for the respondents in each case to dismiss each of the appeals upon the ground that the appeals had not been perfected. It appeared upon the hearing that no written agreement had been entered into between the attorneys for the appellant and the attorney for the respondents for any extension of time for the perfection of these appeals. However, the attorneys for the appellant filed an affidavit in which they set forth that an oral understanding was had with the attorney for the respondents that at a time convenient to both sides that a conference would be had whereby they would attempt to agree upon a settlement of the case for appeal. It seems that other than this no effort was made by either side to bring this matter to a conclusion. The attorneys for the appellant by affidavit state that no request was ever made by the attorney for the respondents that the preparation of the case be completed and that the first intimation that the attorneys for the appellant had of any demand that the appeal be perfected was when they received a notice of this motion. It is not denied by the attorney for the respondents that he never made any demand for the perfection of the appeal before he noted this motion to dismiss before me.
While the appellant clearly has been negligent in getting the case settled for appeal, I am convinced that it was not the intention of the appellant to waive an appeal and I do not think under the statute that I can hold that the appeal in these cases had been waived or abandoned. I do not feel that the negligence on the part of the appellant would justify me in holding that the appeal in these cases has been abandoned. I think that the attorney for the respondents should have made a demand upon the attorneys for the appellant for the perfection of the appeal before he gave notice of his motion to dismiss the appeals. This matter is just another illustration of the unwisdom of attorneys making oral agreements about matters when they could easily reduce their agreements to writing.
In a case which is very similar in all respects to the cases now being considered, that is the case of Salley v. Western Mutual Fire Insurance Company, reported in 177 S.C. 281, 181 S.E., 72, at page 74, the Court stated that while the appellant had failed to perfect this appeal as required by the Code, yet as it was not the intention of the appellant to abandon the appeal to the Supreme Court that under Subdivision 3 of Section 781 and under Section 775 and Section 785 of the Code of 1932, that the appellant should be permitted to perfect the appeal.
Therefore, it is my opinion in the above cases that it was not the intention of the appellant to abandon the appeal in the cases above stated, and therefore, it is ordered that the appellants be permitted to proceed to the perfection of the appeals in each of the above cases. The motion to dismiss the appeal in each of the above cases is denied. It is further ordered that the appeals in each of the above cases be perfected by including the proposed amendments made by the attorney for the respondents, provided such proposed amendments are filed with the Clerk of the Court of McCormick County within ten days from the filing of this order. That thirty days is hereby given the attorneys for the appellant to perfect the appeal, said time to begin from the date of the filing of this order with the Clerk of Court for McCormick County.
Mr. Joseph Murray, of Columbia, for appellants, cites: As to motion to dismiss appeals: Rule 1 of the Sup. Ct. of S.C.; Rules 49 and 50 of the Circuit Court; Code 1932, Sec. 781, Subdiv. (3); Code 1932, Sec. 775, Subdiv. (2); Code 1932, Secs. 784 and 785; 28 S.C. 565; 6 S.E., 577; 85 S.C. 262; 67 S.E., 241; Rule 14 of Circuit Court. As to time for perfecting of appeal: Code 1932, Sec. 781, Subdiv. (3), 775, 784, 785; 90 S.C. 439; 73 S.E., 866; 121 S.C. 366; 113 S.E., 483; Rule 50 of Circuit Court; 16 S.C. 112; 28 S.C. 570; 6 S.E., 577; 59 S.C. 479; 38 S.E., 118; Code 1932, Secs. 387, 388; 169 S.C. 170; 168 S.E., 540. As to granting of additional time: Rule 1, Supreme Court, Rule 49 Circuit Court, Code 1932, Sec. 781, Subdiv. (3); 123 S.C. 361; 116 S.E., 442; 16 S.C. 112; 28 S.C. 565; 65 S.E., 577; 85 S.C. 262; 67 S.E., 241; 121 S.C. 366; 113 S.E., 483, 485; 131 S.C. 117; 126 S.E., 430; 154 S.C. 262; 151 S.E., 470; 160 S.C. 156; 159 S.E., 617; 156 S.C. 73; 152 S.E., 815. As to abuse of judicial discretion: 154 S.C. 262; 151 S.E., 470; Code 1932, Sec. 785, Supreme Court Rules 14 and 15. Mr. Jeff D. Griffith, Solicitor, Mr. George Bell Timmerman, of Lexington, and Mr. J. Fred Buzhardt, of McCormick, for respondent.
October 27, 1941. The opinion of the Court was delivered by
This appeal is from an order of his Honor, Judge Thurmond, filed December 5, 1940, which will be reported; it sufficiently states the facts. By it the perfecting of several appeals to this Court is permitted and this judgment will govern all of them.
The exceptions upon which the appeal here is taken have all been considered and are overruled. As stated in the order on circuit, the controversy is controlled by the case of Salley v. Western Mut. Fire Insurance Co., 177 S.C. 281, 181 S.E., 72, and the reasoning and conclusion of the Court, contained in the opinion delivered by the present Chief Justice, need not be now repeated.
The time limitations set forth in the order below shall begin to run upon the date of the filing in the office of the Clerk of the Circuit Court of the remittitur herein.
Affirmed.
MESSRS. ASSOCIATE JUSTICES BAKER and FISHBURNE and MESSRS. ACTING ASSOCIATE JUSTICES L.D. LIDE and A.L. GASTON concur.