Opinion
11158
March 15, 1923.
Before WILSON, J., Clarendon, March, 1921. Affirmed.
Action by Mason E. Brock et al. against Wash Brock et al. Judgment for plaintiffs and from an order refusing additional time to perfect appeal, defendants appeal.
Messrs. DuRant Ellerbe and L.E. Wood, for appellants.
Mr. W.C. Davis, for respondents, cites: Appeal abandoned: Rule 49 C.C.; Id., 47, 50; Code Proc. 1912, Sec. 384; 40 S.C. 547; 38 S.C. 554; 59 S.C. 200; 16 S.C. 112; 28 S.C. 566; 85 S.C. 262; 106 S.C. 198; 24 S.C. 138.
March 15, 1923. The opinion of the Court was delivered by
This is an appeal from an order of Hon. Jno. S. Wilson, passed at July term of Court for Clarendon County, 1922, declaring the appeal abandoned in this case, under Rule 49 of the Circuit Court, and refusing motion for appellants for additional time in which to prepare the case for appeal. The exceptions raised two questions: Whether the Circuit Judge had authority or power to grant an order enlarging the time for the perfection of a case on appeal before return is filed in the Supreme Court; and whether his refusal to grant the order asked for was an abuse of discretion. Under the facts in the case, there was nothing left but for Judge Wilson to declare the appeal abandoned under the rule of Court and the statute law and decisions of the State. He could not enlarge the time after the time had elapsed for an application for extension and the status fixed. But apart from that we will consider the other exception. We see no abuse of discretion on the part of his Honor. Fifteen months elapsed before any effort was made by appellants to get any extension of time, which shows, without a controversy, a lack of diligence.
Exceptions are overruled, and judgment affirmed.
MR. CHIEF JUSTICE GARY concurs.
MESSRS. JUSTICES FRASER and MARION concur in part.
MR. JUSTICE FRASER: I concur in the holding that Judge Wilson was right in holding that he had no discretion. Having held that Judge Wilson had no discretion, I do not think we should pass on the question of discretion.