Summary
stating an appellate court divests itself of jurisdiction over a matter when it properly sends the remittitur to a lower court
Summary of this case from Levy v. Carolinian, LLCOpinion
January 31, 2007.
ORDER
By order dated October 12, 2006, this appeal was dismissed by the Court of Appeals. On October 27, 2006, the Court of Appeals received a petition to reinstate from appellant; however, he failed to provide proof of service. The remittitur was sent to the lower court by order dated October 30, 2006.
On December 28, 2006, appellant filed a motion for enlargement of time in this Court. By order dated January 4, 2007, the motion was denied because the sending of the remittitur ended appellate jurisdiction over the matter.
Appellant has now filed a "59(e) Motion to Alter or Amend a Judgement [sic]," an affidavit and memorandum of law in support of appellant's "Notice of Right to Appeal," and a document that we have construed as a petition for a writ of certiorari.
Whenever it appears that an appellant has failed to comply with the requirements of the SCACR, an order of dismissal shall be issued. Rule 231(a), SCACR. The Clerk of Court shall remit the case to the lower court in accordance with Rule 221, SCACR, unless a motion to reinstate the appeal has been actually received by the court within fifteen days of filing of the order of dismissal. Id.
When the remittitur has been properly sent, the appellate court no longer has jurisdiction over the matter and no motion can be heard thereafter. Mickle v. Blackmon, 255 S.C. 136, 177 S.E.2d 548 (1970); Thomas v. Lynch, 87 S.C. 44, 68 S.E. 817 (1910); Carpenter v. Lewis, 65 S.C. 400, 43 S.E. 881 (1903); State v. Keels, 39 S.C. 553, 17 S.E. 802 (1893). The only exception to this rule is when the remittitur is sent down by mistake, error or inadvertence of the Court. Keels supra.
The remittitur in this case was not sent down by mistake, error or inadvertence of the Court of Appeals. Instead, it was correctly sent after fifteen days had elapsed from the date of the order dismissing the appeal without the proper filing of a petition for reinstatement. See Rule 224, SCACR (certificate of service shall be filed with all motions and petitions). Accordingly, this Court does not have jurisdiction to act in this matter. The documents filed by appellant are hereby dismissed.
IT IS SO ORDERED.
JEAN H. TOAL, C.J., JAMES E. MOORE, E.C. BURNETT, III, and COSTA M. PLEICONES, JJ.