Opinion
9560
December 5, 1916.
Before MEMMINGER, J., Sumter, July, 1916.
Action by L.D. Jennings against F.O. Jennings. There was judgment against defendant, and he appealed, but the original notice of appeal, on which the indorsed proof of service, was lost, and thereafter found, and defendant moves to be allowed to perfect his appeal. From an order of the Circuit Court denying plaintiff's motion to dismiss defendant's appeal, plaintiff appeals, and defendant moves to dismiss the appeal, and plaintiff moves to dismiss defendant's appeal from the original judgment. Defendant's motion to be allowed to perfect his appeal denied, plaintiff's motion to dismiss defendant's appeal from the original judgment granted, and defendant's motion to dismiss plaintiff's appeal from the order of the Circuit Court granted.
Messrs. A.S. Harby R.D. Epps, for plaintiff.
Mr. John H. Clifton, for defendants.
December 5, 1916.
There are three motions in this case heard together: (1) A motion of F.O. Jennings to be allowed to perfect his appeal; (2) a motion of F.O. Jennings to dismiss the appeal of L.D. Jennings; and (3) a motion of L.D. Jennings to dismiss the appeal of F.O. Jennings.
1. In 1912 the judgment in this case was filed. This judgment was against F.O. Jennings. Notice of appeal was given. The original notice of appeal on which was indorsed the proof of service was lost, and, as the respondent denied that the notice had been given, nothing more was done to prosecute the appeal. This notice of appeal and proof of service was found several months ago. The exact date is not given. It appears the appellant, F.O. Jennings, has not used due diligence to perfect his appeal even after the finding of the lost notice of appeal, and the first motion to be allowed to perfect the appeal is refused.
2. L.D. Jennings moved before the Circuit Court to dismiss the appeal of F.O. Jennings. It appears that the return to this Court had then been filed with the clerk of this Court when this motion was made. Judge Memminger refused the motion on the ground that he had no jurisdiction, inasmuch as the return had been filed in this Court. From this order L.D. Jennings appealed, and F.O. Jennings moved to dismiss this appeal. The Circuit Court had no jurisdiction to dismiss the appeal after the return had been filed, and this motion is granted. The appeal from Judge Memminger's order is dismissed.
3. The motion of L.D. Jennings to dismiss the appeal of F.O. Jennings from the original judgment is granted.