Palmer v. Simons

92 S.E. 23, 107 S.C. 93, 1916 S.C. LEXIS 299

• Court: Supreme Court of South Carolina
• Decided: March 28, 1916
• Docket: 9660
• Status: Published

Opinion

The opinion of the Court was delivered by

Mr. Justice Hydrick.

The probate Judge rendered his decree in this case, dated January 18, 1915. On January 20th a copy thereof was served on the attorneys for both parties, who acknowledged service thereof in writing indorsed on the original decree. On February 5th, 16 days thereafter, Simons’ attorneys served the probate Judge and Palmer’s attorneys with notice and grounds of appeal to the Circuit Court. Both notices were promptly returned on the ground that they had not been served within the time required by statute,' to wit, “within fifteen days after notice of the decision appealed from.” Section 63, vol. II, Code Civ. Proc. Thereafter Simons’ attorneys moved the Circuit Court, Judge Wilson presiding, for leave to perfect the appeal. The motion was made on the notice and grounds of appeal and an affidavit of Mr. Washington Clark, one of Simons’ attorneys, who said that, when the decree was served upon him, he was very busy with other matters, and, overlooking the fact that January has 31 days, by mistake, thought he had until Eeb ruary 5th to serve his notice and grounds of appeal. It was admitted at the hearing that the original decree was placed in the record in this case in the probate Court, and that it had been kept there continuously since that time, but that no entry of filing, or date of filing, appears thereon. The Court found that Mr. Clark’s neglect in failing to serve his notice of appeal within the time prescribed by law was excusable, and, on that ground, signed an order that the appeal be perfected, and that the probate Judge receive the notice and grounds of appeal and certify the record in the case-to the Circuit Court for the purpose of hearing the appeal." From this order, Palmer’s attorneys served due notice of intention to appeal to this Court. Thereafter the appeal from the probate Court was heard by the Circuit Court, Judge Bowman presiding, and the decree of the probate Court was reversed in important particulars, and the case was remanded to that Court for judgment in accordance with the decree of the Circuit Court. From this decree, as well as from the order of Judge Wilson, Palmer appeals.

1 It is settled by numerous decisions of this Court that the time prescribed by statute within which notice of appeal must be given cannot be enlarged or extended by the Courts. Davis v. Vaughan, 7 S. C. 342; Scott v. Pratt, 9 S. C. 82; Manuel v. Loveless, 56 S. C. 426, 35 S. E. 1 ; Gibbes v. Beckett, 84 S. C. 534, 66 S. E. 1000; Lightsey v. Rentz, 85 S. C. 410, 67 S. E. 456; O’Rouke v. Paint Co., 91 S. C. 399, 74 S. E. 930. In Gibbes v. Beckett, the Court said :

“The law requiring appeals to be taken within a fixed time may sometimes produce hardship, but it is important to the administration of justice that there be no uncertainty'. There will be few, if any, cases of hardship if the time allowed is utilized without dependence on quick work at the end of the period. However that may be, the Court has no power to extend the time fixed by law.”

2 As to the contention of respondent’s attorneys that the decree of the probate Court was not marked “filed,” and the date of filing indorsed thereon. The fact is that it was filed and kept on file in its proper place in the record of the cause in the probate Court, and respondent was in nowise prejudiced by the failure to make the usual indorsement, which is merely evidence of the - filing and date thereof; and, while the memorandum usually is, and should be, indorsed, it is not an essential part of filing. In point of time, it usually follows filing, which is complete when á paper is delivered to and received by the proper officer to be kept on file. 3 Words and Phrases, 2764.

3 As to the further contention that they were not notified of the date of filing the decree. The statute requires notice of appeal to be given “within fifteen days after notice of the decision appealed from.” Respondent had notice of the decision. A copy of it was left- in his hands. The statute does not require notice of the date of filing thereof to be given. It is customary in giving such notices to state the date and place of filing, but that is merely for the purpose of identification. Respondent was not prejudiced by the lack of it in this case.

■ The Circuit Court had no jurisdiction to extend the time for appealing, and, of course, no jurisdiction to hear the appeal; hence both orders appealed from must be reversed.

Revérsed.