Talbird v. Whipper , 31 S.C. 600 ( 1889 )

In this ease, the appeal was dismissed by the clerk on April 15. On April 20, appellant gave respondent notice of a motion to be made on April 23, which was the first day of the call of causes from that Circuit, for an order reinstating the appeal. This motion was resisted on the ground that the notice had not been given eight days beforehand. The court thereupon refused the motion, but in view of the fact that the liberty of a citizen was involved, suggested a course which the law allowed.

Subsequently during the same day, an order was signed requiring the appellant to show cause on April 26, why the order of the clerk should not be vacated. On April 26, the appellant made return showing for cause that the return had not been filed within 40 days after the papers constituting it was perfected.

On the same day, the decision of the court was rendered through the Chief Justice, who said that for some reasons it would be agreeable to vacate the order of dismissal, but to do so would require the court to ignore its rules and respondent’s rights thereunder. Return must be filed to give this court jurisdiction. Rule 1 requires the return to be filed within 40 days, and Rule 2 declares what the return is. Under the statute (15 Stat., 862; Code, § 345, ¶ 5) an agreed statement is a sufficient return, but such statement must be agreed to in writing. Here there is neither return nor agreed statement, no unavoidable cause, mistake, or inadvertence shown by appellant, and the motion must be dismissed.