Tribble v. Poore

Citations

• 28 S.C. 565
• 6 S.E. 577
• 1888 S.C. LEXIS 86

Syllabus

<p>1. Rule I. of this court requires the return to be filed wdtbin forty days after the record constituting the return has been completed; and rule II. declares that the return shall consist of judgment roll, notice of appeal, and exceptions. The “Case” prepared for the appeal is no part of the judgment roll and therefore no part of the return.</p> <p>2. Where more than 40 days had expired since the completion of the record constituting the return, the clerk properly dismissed the appeal on application to him under rule I., notwithstanding the “Case” for the appeal had not been settled for that length of time.</p> <p>3. Judgment in the Circuit Court cannot be entered while a motion for new trial, on case and exceptions is pending.</p> <p>4. The “Case” required by section 302 of the Code to form a part of the judgment roll is the ease prepared on an application to the Circuit Court for a new trial, and not the “Case” for appeal.</p> <p>5. Rule 49 of the Circuit Court does not refer to the judgment roll nor to what papers shall constitute it.</p> <p>6. But the appeal having been taken in good faith and appellant having, in common with many others, honestly misconstrued this rule of court, he is entitled under the law to have his appeal reinstated. His failure before the 40 days expired to give notice of a motion to have his time for filing the return extended, does not prevent this court from granting such relief afterwards.</p> <p>7. The order of the clerk dismissing the appeal was not res judicata, nor does it prevent this court from restoring the cause to the docket. This case distinguished from Clark Bros. v. Wimberly, 24 S. C., 138.</p>