Archer v. Long

Mr. Chiee Justice McIver,

dissenting. This is a motion to reinstate the appeal, which had been dismissed by the clerk for failure to file the return within the time prescribed by law.

The facts of the case, so far as they affect this motion, as gathered from the affidavits submitted, are substantially as follows: The order, from which this appeal was sought to be taken, was granted by his honor, Judge W. C. Benet, at chambers, on the 19th of August, 1895; and on the 28th of August, 1895, written notice of the same, in which was incorporated a copy of the order, was duly served upon the attorneys for the plaintiffs. On the 9th of September, 1895, the attorney for plaintiffs addressed a letter to the attorneys for defendant, enclosing a notice” of appeal from the said order of Judge Benet, as well as certain grounds of appeal therefrom. This letter, with its enclosures, was received by the attorneys for defendant on the 10th of September, 1895, and the notice of appeal wras immediately returned to the attorney for plaintiffs, as not served in time. Subsequently thereto, to wit: on the 5th of October, 1895, the order of Judge Benet was filed in the proper office, and on the 15th of October, 1895, another notice of appeal was served upon' defendant’s attorne}', which was likewise immediately returned to the attorney for the plaintiffs, as not served in time. Within thirty days thereafter the proposed “Case,” together with the exceptions previously served, as well as certain additional exceptions, were served upon defendant’s attorneys, who served certain proposed amendments to the proposed “Case,” but expressly reserved his “right to move to dismiss the appeal herein, because the notice of appeal was not served within the time required by law, and also upon such other grounds as he may be advised.” The return was filed on the 18th of November, *2971895, within twenty days, as I understand it, after the service of-the “Case” with the exceptions last served. So that the only question in the case as now presented, is whether the plaintiffs were bound to give notice of appeal within ten days after the service of the written notice of the order of Judge Benet, and to serve their exception within thirty days thereafter, and that the return should be filed within twenty days after the expiration of such thirty days.

It seems to me that the express language of the statute is conclusive of this question. So much of subdivision (1) of sec. 345 of the Code as is pertinent to this question reads as follows: “In every appeal to the Supreme Court from an order, decree or judgment, granted or rendered at chambers, from which an appeal may be taken to the Supreme Court, the appellant, or his attorney, shall, within ten days after written notice that such order has been granted, or decree of judgment rendered, give notice to the opposite party, or his attorney, of his intention to appeal; * * * and within thirty days after such notice the appellant, or his attorney, shall prepare a case with exceptions and serve them on the opposite party, or his attorney.” Under this explicit statutory provision, the appellants were bound to give notice of their intention to appeal within ten days after the 28th of August, 1895, the day on which they were served with written notice of the order granted by Judge Benet, and within thirty days 'thereafter to prepare and serve their proposed “Case” with exceptions; and Rule 1 of this court requires that within twenty days after the record constituting the return has been completed, and such return must be filed with the clerk of this court,' and that a failure to comply with this requirement shall be deemed a waiver of the appeal; and, upon a proper showing to that effect, the respondent may obtain an order from the clerk of this court dismissing the appeal, as was done in this case. Inasmuch-as the return was not filed until the 18th of-November, 1895, it is clear to my mind that the clerk was not only justified but bound to grant the order dismissing the *298appeal, for a simple calculation will show that the return was not filed within sixty days — the utmost limit of time allowed — after tire appellants had been served with written notice that the order sought to be appealed from was granted; fob, according to my view, the time commenced to run from the day on which the written notice of the granting of t*he order of Judge Benet was served, to wit: on the 28th of August, 1895, as expressly declared by the statutory enactment above quoted.

It is contended, however, that the time did not commence to run until the order of Judge Benet was filed. It seems to me that a sufficient answer to this position is that the statute does not so provide, and, on the contrary, it does expressly provide that the notice of appeal from an order granted, or a decree or judgment rendered at chambers, shall be given within ten days after written notice “that such order has been granted, or decree or judgment rendered” — not after such order, decree or judgment has been filed — and to hold that the time shall not commence to run until- such order, decree or judgment has been filed, would involve the necessitjr of interpolating words into the statute which the legislature has not seen fit to insert therein; and, what is more important, would fix a different time from that designated by the legislature in plain and' unmistakable terms. This, of course, the court has no right to do. If it should be said that no order can be regarded as granted, and no decree or judgment can be regarded as rendered, until such order, decree or judgment has been filed, inasmuch as the judge who granted such order, or rendered such decree or judgment, may at any time before such order, decree or judgment has been filed, modify, amend or even rescind such order, decree or judgment; the answer to this is, that the judge may do this even after the order, decree or judgment has been filed in certain cases; and this is sufficient to show that the filing of such papers does not establish their finality, and does not impart any additional validity to such papers. In the case of Clark v. Melton, *29919 S. C., 498, it lias been held (quoting from the syllabus, which is fully sustained by the opinion,) that “the judgment is the judicial determination of the rights of the parties, and that being had, the omission of the clerk to sign and date it, and to mark it filed, was a mere irregularity, and may be corrected at any time.” The same principle was recognized in Godfrey v. Fielding, 21 S. C., 313, and applied to the betterment act. The order sought to be appealed from was a judicial determination of the rights of the parties as soon as signed by Judge Benet, and when the appellants were served with written notice of the granting of such order, which notice embraced a copy of the order, the appellants were bound, by the express provisions of the statute above quoted, to give notice of their intention to appeal therefrom, within ten days thereafter, and within thirty days after the expiration of such ten days they were bound to serve their exceptions. The papers constituting the return would then be complete, and, under the rule, must be filed in the office of the clerk of this court within twenty days thereafter; and this not having been done, the appeal was properly dismissed by the clerk. Even if a showing had been made that such default arose from some excusable neglect, this court would be powerless to relieve the appellants; for, under the facts above stated and under my construction of the law, the notice of intention to appeal was not given in time; and this is an indispensable condition precedent.

I am of the opinion, therefore, that the motion to reinstate the appeal should be refused.