State ex rel. Ross v. Kelly

41 S.C. 551

Opinion

This was an application for a writ requiring the respondent to show cause why a writ of mandamus should not issue. The rule was made returnable on Tuesday, November 28, 1893, it being the general order of this court that cases within the original jurisdiction should be heard only on Mondays. Pending negotiations for a settlement, nothing further was done; and on the call of the special docket at April Term, 1894, on May 7, no counsel appearing, the case was marked continued. On May 28, counsel for respondent, after due notice, moved for an order vacating- the order of continuance, and asking that the case be heard at once. Counsel for relator was willing that the order of continuance be vacated, provided the respondent serve a copy of their return on relator a few days before the hearing. Respondent would not accede to this modification.

May 28, 1894. Charles Inglesby, for motion. T. W. Bacot, contra.

The court ruled that a return in mandamus was a part of the pleadings; that there could be no hearing until return filed, and all pleadings in the matter completed; that it was the practice of this court to let the relator have a copy of the return some time before the hearing, so that he might know what issues were raised thereby, and might traverse or demur. This case was continued by the direction of the rules of this court, no counsel appearing on its call. It is within the discretion of this court to vacate this order, or to refuse its vacation. Motion refused,