First Carolina Nat'l Bank v. a & S ENTERPRISES

272 S.C. 339 (1979)

251 S.E.2d 762

FIRST CAROLINA NATIONAL BANK, Respondent, v. A & S ENTERPRISES, INC., d/b/a Wholesale Beer & Wines, Robert Smith, III and Douglas Arthur, Appellant.

20868

Supreme Court of South Carolina.

January 31, 1979.

Samuel J. Abrams and Mazursky & Evans, Sumter, for appellant.

Mitchell, Nelson & Weaver, Florence, for respondent.

January 31, 1979.

Per Curiam:

This action was brought by respondent First Carolina National Bank against appellants A & S Enterprises, Inc., d/b/a Wholesale Beer & Wines, Robert Smith, III and Douglas Arthur to recover possession of certain items of personal property. This appeal is from the order of the lower court authorizing the immediate seizure of the property.

Respondent moved before this Court to dismiss the appeal, contending that appellants failed to timely serve their Notice *340 of Intention to Appeal. Appellants argued against the motion to dismiss and filed a written return.

The order of the lower court is dated February 13, 1978. The appellants' Notice of Intention to Appeal recites that the February 13, 1978 order "was served and notice of the same given on February 14, 1978." The appellants' Petition for Writ of Supersedeas also recites: "That on February 14, 1978, appellants were served with papers in Claim and Delivery."

The appellants' Notice of Intention to Appeal was not served upon counsel for respondent until March 6, 1978. It is readily apparent that the Notice of Intention to Appeal was not served upon opposing counsel until more than ten days after February 14, 1978, the date appellants were served with and given notice of the order that is the subject of this appeal.

Where, as here, the appellants have failed to give notice of their intention to appeal within the ten day period prescribed by Section 18-9-60, 1976 Code of Laws of South Carolina, the appeal must be dismissed for want of jurisdiction. Fisher v. Teachey, 268 S.C. 451, 234 S.E. (2d) 655 (1977).

Accordingly, the appeal is dismissed.