Opinion
August 3, 1903.
Before GARY, J., Charleston, October, 1902. Affirmed.
Action by Equitable Fire Insurance Co. against S.H.M. Fishburne. From Circuit order refusing to settle "Case" for appeal, defendant appeals.
Mr. Julian Fishburne, for appellant.
Messrs. Smythe, Lee Frost, contra.
August 3, 1903. The opinion of the Court was delivered by
This action was instituted for the foreclosure of a mortgage. On July 11th, 1902, Judge Gage rendered a decree of foreclosure and sale. The defendant gave notice of appeal, and subsequently, on October 3d 1902, filed a proposed case with exceptions, to which the plaintiff in due time proposed amendments. Thereupon defendant served notice that she would move to settle the case for appeal before Judge Ernest Gary, then presiding in the First Circuit. The motion came on to be heard by Judge Gary on October 22d 1902, and he refused the application, holding that he had no jurisdiction to settle the proposed case and amendments, inasmuch as the cause was tried before Judge Gage, and it did not appear that he was disabled from hearing the case, but the contrary. In making the motion before Judge Gary instead of Judge Gage, the defendant relied on a newspaper statement that Judge Gage was disabled. A letter from Judge Gage was produced at the hearing, however, saying he was not disabled but was holding court in another circuit. To save defendant from any injury on account of her mistake, leave was granted her to apply to Judge Gage for a settlement of the case within fifteen days. From the order of Judge Gary defendant appeals.
Judge Gage having heard the cause and not being disabled, there is no room to doubt that Judge Gary was without power to settle the case. Code of Civil Procedure, section 345, Rule V. of Supreme Court.
It is not necessary to determine whether Judge Gary had the power to extend the time for settling the case. His order in that regard was altogether favorable to appellant.
The order of the Circuit Court is affirmed.