Gibbes v. G. & C. Railroad

Citations

• 14 S.C. 385
• 1881 S.C. LEXIS 2

Syllabus

<p>1. In the administration of its own rules, this court, as far as practicable, will not permit mere forms to override substance.</p> <p>2. The first section of the act of 1878, (16 Stat. 698), regulating appeals to the Supreme Court, applies to all cases where the order, decree or judgment appealed from was made during the term at which the case was tried.</p> <p>8. To be entitled to an appeal from a decree rendered during the term at which the case was tried, the appellant, within ten days after the rising of the court, must furnish the presiding judge, and serve the respondent’s attorney with notice of his intention to appeal, and within thirty days thereafter must serve his case upon the respondent. Rogers v. Nash, 12 S. O. 560, affirmed.</p> <p>4. After the time had expired for furnishing the presiding judge with notice of intention to appeal, the respondent, in ignorance of appellant’s failure so to furnish his notice, signed an agreement as to the papers which should constitute the appeal record, and the time within which it should be prepared. Held, that there was no waiver of the failure to furnish the presiding judge with such notice.</p> <p>5. A cestui que trust has the right to appear in this court and avail himself of the appeal .of his trustee. This case distinguished from Shaw v. Railroad Company, 10 Otto 611, and Annely v. Pe Saussure, 12 S. C. 512.</p> <p>6. But such cestui que trust must secure to the trustee all expenses necessary to the prosecution of the appeal.</p>