Salinas & Sons v. Aultman & Co.

27 S.E. 407, 49 S.C. 325, 1897 S.C. LEXIS 163

• Court: Supreme Court of South Carolina
• Decided: April 19, 1897
• Status: Published

Opinion

The opinion of the Court was delivered by

Judge Watts, A. A. J.

This is a motion to dismiss an appeal from an order of Mr. Associate Justice Pope, and to dissolve the restraining order made by him in the above cause on November 30, 1896; said' motion is based upon the pleadings in the case and affidavit of J. C. Klugh, Esq. It seems from the pleadings herein that the original suit was commenced on September 26, 1896, for injunction. ' J. C. Klugh, as master of Abbeville County, had advertised a certain tract of land, described in the complaint, for sale on salesday in October, 1896. On the 24th.day of September, 1896, Mr. Associate Justice Pope granted an order requiring the defendants to show cause before him on October 14, 1896, why a preliminary order of injuction should not be granted, and the defendants restrained in the meanwhile from proceeding to sell. Upon the hearing, Justice Pope vacated the restraining order, and decided that he had no jurisdiction to grant an injunction in the case; from this order an appeal was taken by the plaintiffs, appellants, and pending said appeal, and after proper return had been made and filed in this Court, the order appealed from was made by Mr. Justice Pope. The motion to dismiss appeal is made on different grounds, and should be set out in the report of the case.

1 2 It is the settled and established practice of this Court not to dismiss on motion any appeal that has apparently any merit in it at all, but to suspend the determination of it until the case can be heard on its merits on appeal. It has been established and decided that where a substantial right has been denied any one, an appeal will lie to this Court. Blakely & Copeland v. Frazier, 11 S. C., page 122. And surely no one will deny that, if Justice Pope was authorized by law, as an Associate Justice of the Supreme Court of this State, to grant injunctions at chambers, then these plaintiffs, appellants, had the right to apply to him for one, and upon his holding that he was without jurisdiction to grant the same, then that was a denial of a substantial right, and appealable. This question involves a grave constitutional question, and, of course, would not be considered on a motion of this kind. Wherever an appeal is taken to this Court from a substantial right denied, any of the Justices of this Court has the right, after return made, to stay, by order, further proceedings in the case. This, we think, disposes of grounds 1, 2, 3, 7, 9, 10, and 12 of the notice.

3 As to the fourth ground, “Because said order was granted without notice to the defendants.” This only applies to Circuit Judges and practice of Circuit Court. Section 402 of Code, subdivision 6, applies to Circuit Court and not to Supreme Court.

4 As to the grounds that no papers were served upon the defendants, Aultman & Co., we do not think that was absolutely necessary; as. enjoining the sale was what plaintiffs desired, and that was accomplished by serving master, and we do not think order should be dissolved on that ground.

5 As to the failure to require security from plaintiffs, this was a matter entirely for the discretion of the Justice before whom application was made; and while we think in most cases security ought to be required, yet, we think, that can be safely left to the wise discretion of'the Justice at all times to protect all parties; and even if he neglects to require it, application can at all times be made upon notice to other side to require it. In this case, the discretion of the Judge has not been abused.

The judgment of the Court is, that the motion to dismiss appeal and to dissolve injuction is refused.