JAMES WILLIAMS, Appellant, vs. CHARLES C. SIMS and AROLINE C. SIMS, Appellees.
[January Term, A. D. 1893.]
Appeal from the Court of Quarter Sessions and Common Pleas, Sinoe County.
Damages.
Where no return has been made to the writ or notice required by law to be served upon the appellee, within legal time, the court cannot exercise jurisdiction over the case and will, upon motion made, dismiss the appeal. The return, to be legal, must be made before the first day of the term to which the appeal is taken.
This is a case tried upon a change of venue in the Court of Quarter Sessions and Common Pleas, Sinoe County, at its May term, A. D. 1892, and brought from said court on appeal to this court upon a bill of exceptions. Upon the call of the parties the appellee announced to the court that he had a motion to offer in the case, and begged that the same should be heard, to which the court consented. We would remark that this case lies under the same legal disadvantages which existed in the case of Toles against Dickinson. What is indispensably essential to give the court jurisdiction over the person of the appellee is the return of the writ or notice served upon the appellee, which must be made to the court before the first day of the term for which the case was entered, otherwise the court can exercise no jurisdiction whatever over the case. And this is very obvious from the fact that all appeals brought up here must be directed to the Supreme Court to be holden on the second Monday in January. All writs must be returned to the court on that day, otherwise for this default on motion to dismiss the case the court will sustain the case.
The court, on inspection of the record and the precepts, finds that the appellee was not duly notified to appear on the legal day of the opening of the court, viz., the second Monday in January; neither had the return to such a notice been made to the clerk of the court on the day just referred to, in order to give the court jurisdiction over the case; and here we must remark that the five days allowed for the docketing of the case do not give any right to the appellant to notify the appellee to appear and answer at the same term of the court, if the notice had not been given previous to the opening of the same.
The privilege of allowing the docketing of the case within five days was only given on account of the inconvenience of traveling at that time, there being no steamers plying along the coast so as to enable parties to have complete records supplied and sent up upon mandate from this court, or by other legal means. The writ or notice not having been served on the appellee and returned at the proper time, this court is without the jurisdiction to review the same; and the motion of the appellee to dismiss the case is sustained, and the appeal is dismissed with costs.