Munn v. Price

This is a motion by the respondents to dismiss the appeals in the two cases above stated, which it appears were tried together upon the ground that the appeals were frivolous and intended merely for delay and upon certain other grounds which need not be stated.

It appears from the moving papers that the two cases were tried together before his Honor Judge Mauldin at Charleston in April, 1931; that the trial resulted in a verdict in favor of the plaintiff in each case. After entry of judgment upon the verdicts the defendants gave notice of intention to appeal and within the required time served upon counsel for the respondents a proposed case containing exceptions on June 5, 1931. The motion of the respondents to dismiss the appeals was noticed to be heard in this Court on June 15th. Counsel for the respondents stated in open Court that the time for serving amendments to the proposed case expired on the day that the motion was heard, June 15th, and that up to that time no proposed amendments had been served. The appeal therefore was not ready to be docketed in this Court and has not been so docketed by filing the necessary return.

In the case of Allen v. Cooley, 53 S.C. 414, at page 447, the Court announced what is universally conceded that "jurisdiction of the Supreme Court does not attach until the return is filed. * * *

It appears therefore that the motion must be dismissed for lack of jurisdiction and it is so ordered.

There is no reason why the respondents may not urge upon the hearing of the case upon its merits the grounds upon which the present motion has been made.

If the appellants should fail to comply with the rule of this Court in reference to the filing of the return the respondents' remedy is by motion in the Circuit Court to dismiss the appeal.

MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN, STABLER, CARTER, and BONHAM concur.