Gamble v. Jenkins

46 S.C.L. 692

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1860
• Status: Published

Opinion

The opinion of the Court was delivered by

O’Neall, C. J.

In this case, the first ground of appeal presents the question, whether a motion to discontinue can be made at chambers?

We see no reason for holding otherwise. A motion to discontinue is very much of course. It generally is no disadvantage to the defendant. Ordinarily he neither can nor desires to make any objection. Here the defendant could not have been heard against the motion. He did not appear to the case.

The second ground presents no difficulty. The defendant did not enter an appearance: .he was therefore in default and had no right to notice.

The third ground is also without merits. It might be made anywhere the judge heard it. It was not to be made sedente curia, nor in the district where the Court sat. A judge’s power extends over the whole State. On the fourth ground, it may be remarked, that the order was recorded in the minutes after Spring Term, and before the commencement of Pall Term. This was enough.

As to the fifth ground, I do not perceive any objection to the order, by the fact, that the plaintiff withdrew his case rather than that the defendant should be altogether discharged from the debt. . This he had the right to do.

The motion to reverse the decision below is dismissed.

Wardlaw, J., concurred.

Motion dismissed.