Lysaght v. Berkeley &c. Co. , 41 S.C. 554 ( 1894 )

This was a motion to reinstate an appeal_which had been dismissed by the clerk under Rule 7, for failure to serve on respondant three copies of the printed case within ten days after demand therefor. The motion was refused June 7, 1894, the court saying: “The showing made to excuse the default of appellant is of a two-fold character: 1. It is alleged that the amendments which were proposed by the respondent are not in proper form. Whether this is true or not, it is not necessary to decide, because, if appellant thought that the proposed amendments were not in proper form, it should have declined to receive such proposed amendments. 2. It is alleged that the bulk of the papers constituting the case or brief is such that they could not be printed in the required time. Section 348 of the Code provides for such cases: ‘The time for taking any step or proceeding in the preparation and perfection of appeals from the Circuit Courts to the Supreme Court, as now prescribed by law, may be extended by the judge who heard the cause, or by any one of the justices of the Supreme Court, upon four days notice of such motion being first given to the opposite party, except the time of giving notice of appeal to the opposite party.’ ”

Jervey, Prioleau & Von Kolniiz, for the motion. Mitchell & Smith, contra.

It seems to us, therefore, that the clerk was not in error in dismissing the appeal, under Buie 7, and it is with regret that we say the motion to reinstate the appeal cannot be granted. Counsel must remember that these rules were adopted to promote the dispatch of business, and, however hard their enforcement may seem in individual cases, we are bound, however reluctant to do so, when their provisions are invoked, to accord to the moving party the right to which he is entitled.