Walters v. Laurens Cotton Mills , 53 S.C. 155 ( 1898 )

The opinion of the Court was delivered by

Mr. Justice Pope.

1 The plaintiffs having recovered a judgment for the recovery of certain property, and also a judgment for punitive damages, the defendants now appeal to this Court for a reversal of such judgment. Quite a number of the exceptions raise the question as to whether the defendant was not entitled to introduce testimony, both oral and written, relating to a suit of Mollie Walters, who is one of the plaintiffs here, against the defendant, the Lau-rens Cotton Mills, before a magistrate, for the recovery of the same personal property referred to in the action at bar. The Circuit Judge refused to allow such testimony to be admitted. It appears from the “Case” that the suit in the magistrate’s court referred to was between one of the plaintiffs only and one defendant, and sought to recover personal property alone; while in the case at bar the plaintiffs are J. C. Walters and Mollie Walters, the defendants are the Laurens Cotton Mills and W. L. Lucas; and the object of the suit at bar is not only the recovery of the personal property, but also punitive damages. The law is well settled that, in order for the plea of the pendency of another action to defeat another suit, three things must appear: 1. The parties must be the same. 2. Identity in the thing sued for. 3. Identity in the cause of action. These conditions are not answered. Hence there was no error in the Circuit Judge, as here alleged in the 1st, 2d, 3d, 5th, and 6th exceptions.

2 Again, the appellants insist that the Circuit Judge erred in refusing to grant a nonsuit as to plaintiffs’ second cause of action, which was for punitive damages. It is now settled law that, if there is any evidence — legal evidence— tending to prove the cause of action as alleged by plaintiff, it is not the duty of the Judge to grant a nonsuit; the issue must go to the jury. By looking into the testimony, as it appears in the “Case,” it seems that the defendants-forcibly took charge of plaintiffs’ property just as they were in the act of leaving the town of Laurens to seek work elsewhere, and it was alleged that such seizure was prompted by a desire that plaintiffs should be thereby forced to remain and labor with the defendants. Of course, these were questions of fact for the jury. Punitive damages are awarded in our Courts. Spellman v. R. R. Co., 35 S. C., 475, and cases therein cited. There was no error, as here complained of. ,

3 The defendants’ 8th, 9th, 10th, and 11th exceptions are as follows: “VIII. Because he erred in charging plaintiffs’ seventh request. IX. Because he erred in not charging defendants’ first, second, and third requests. X. Because he erred in charging on the facts, in violation of the Constitution of this State. XI. Because he erred in not setting the verdict aside and ordering a new trial.” We will positively decline to pass upon these requests, because they fail to -comply with the requirements of our rules, in this, that they each fail to specify and set out what it is the appellants desire us to consider. Again and again this Court has directed the attention of counsel to this matter. Possibly a refusal by us to permit such disregard of rules may cause these rules to be noticed by the bar.

4 It will be noticed that so far we have not considered the respondents’ point that the Court is without jurisdiction to entertain the appeal, because notice of appeal was not served upon the respondents’ attorney within ten days after the rising of the Court of Common Pleas when the judgment was rendered. Inasmuch as the appeal must be dismissed upon the merits, it might seem that our duty to pass upon this objection as to the jurisdiction did not exist. The Constitution requires this Court, however, to pass upon every question that fairly rises, or is presented by the record. We cannot agree with the respondents, for the following reasons briefly stated: It is in the power of the General Assembly to provide the method by which appeals are to be presented to this Court. The General Assembly' has declared that this Court may disregard any errors in the preparation of papers for appeal, except the notice of appeal. This being so, we cannot be too careful in observing this requirement of the statute. Sec. 345 of our Code of Civil Procedure requires: “* * * and in all other appeals to the Supreme Court, the appellant or his attorney shall, within ten days after the rising of the Circuit Court, give like notice (written) of his intention to appeal to the opposite party or his attorney * * It will be observed that written notice to the opposing party or his attorney is required. So that, as to the service of this written notice, we must look elsewhere in the Code for guidance. Sec. 408 provides: “Notices shall be in writing, and notices and other papers may be served on the party or attorney, in the manner prescribed in the next three sections, when not otherwise provided by this Code of Procedure.” We look in vain through the Code of Procedure for any other directions regulating the service of notices of appeal other than those fixed in sections 409, 410 and 411. Hence they apply. Sec. 469 substantially directs that in the event personal service of the notice is desired, how it shall be done. Sec. 410 provides: “Service by mail may be made when the person making the service and the person on whom it is to be made reside in different places between which there is a regular communication by mail.” The attorney for plaintiffs resided in the city of Columbia, in this State, and the attorneys for defendant resided in the city of Laurens, in this State, and there is a regular communication by mail between the two places just named. Sec. 411 provides: “In case of service by mail, the paper must be deposited in the post office, addressed to the person on whom it is to be served, at his place of residence, and the postage paid.” It is admitted the notice was deposited by the appellant in the post office at Laurens, addressed to the attorney for respondents, at Columbia, S. C., postage prepaid, at 1 o’clock of the afternoon on the tenth day after the rising of the Court, but did not reach respondents’ attorney at Columbia by mail until the eleventh day. This Court has decided, in the case of Sullivan v. Speights, 12 S. C., 562, that “the service was complete from the time the paper to be served is deposited in the post office, addressed to the person upon whom it is to be seryed, at the place of residence, with the postage paid.” Hence we think we have jurisdiction to hear the appeal; but, as before remarked, it must be dismissed on the merits.

The members of this Court being equally divided in opinion, under the Constitution the judgment of the Circuit Court stands affirmed.

Mr. Justice Gary concurs in result.