Thomas C. JOYNER, Respondent, v. GLIMCHER PROPERTIES and Smith Land Resources, Inc., Defendants, Of whom, Glimcher Properties is, Appellant, 356 S.C. 460

GOOLSBY, J.: Following a jury trial in magistrate’s court, Thomas C. Joyner received a verdict against Glimcher Properties in the amount of $2,500.00. Glimcher appealed to the circuit court. The circuit court dismissed the appeal for failure to prosecute. Glimcher appeals. We affirm. FACTS/PROCEDURAL HISTORY Thomas C. Joyner was an invitee driving his van across the public parking lot at Cross Creek Shopping Center in Beaufort County. A tree limb fell on his van, destroying the vehicle and causing him personal injuries.

He sued Glimcher Properties, the owner/manager of the commercial property, and Smith Land Resources, Inc., the landscaping/maintenance contractor for the property. The case was tried before a jury in magistrate’s court on November 18; 1999. The jury returned a verdict in favor of Joyner in the amount of $2,500.00 against each of the two defendants. Glimcher appealed to the circuit court on December 20, 1999. The magistrate who heard the case did not file a return within 30 days, as required by Rule 75, SCRCP. In fact, he never filed one.

Glimcher never requested the circuit court to issue a writ of mandamus to force the magistrate to do so. On March 23, 2000, Joyner wrote the Chief Administrative Judge for the Fourteenth Judicial Circuit, requesting a court date on April 12, 2000, copying Glimcher with this letter. Glimcher made no response to this letter. On June 2, 2000, Joyner filed a motion to dismiss the appeal for failure to prosecute. The circuit court granted the motion and awarded interest on the judgment and attorney fees in the amount of $500.00. Glimcher appeals.

LAW/ANALYSIS Having timely appealed, Glimcher argues that the circuit court erred when it dismissed his appeal because the magistrate failed to issue a return. He argues that “the appellant from magistrate’s court is under no duty to act once the notice of appeal has been filed,” and that the duty to act rests solely with the magistrate. Generally, the magistrate has a duty to complete the return.

After the notice of appeal has been filed, “[t]he court below shall thereupon, after ten days and within thirty days after service of the notice of appeal, make a return to the appellate court of the testimony, proceedings and judgment and file it in the appellate court.” Since the magistrate has no duty to provide a copy of the return to the parties, Glimcher argues there was no reasonable means for him to ensure that the return was timely filed. We disagree. Glimcher was on notice that a return had not been timely filed when he did not receive a notice in writing from the clerk of the circuit court.

Having received no such notice, he should have presumed no return had been filed and acted accordingly. Citing S.C.Code Ann. § 18-7-80 (1985), Glimcher argues the circuit court, by its own order, may compel that a return be made. When an inadequate or defective return has been filed, the burden is on the circuit court to direct the magistrate to file an amended return. No return, however, was filed in this case. When there is no return, the appellant from the magistrate’s court must act with due diligence and seek a writ of mandamus if necessary to compel the return.

Although some may view the result we reach as harsh, we feel compelled under the current case law to uphold the circuit court’s decision to dismiss the appeal for failure to prosecute. The motion to dismiss was the only motion in front of the court, and the court was under no obligation to sua sponte direct the magistrate to file a return. AFFIRMED. HEARN, C.J., concurs. HOWARD, J., dissents in a separate opinion. . The magistrate resigned on February 2, 2000, forty-three days after the Notice to Appeal was given.

See S.C.Code Ann. § 18-7-70 (1985) ("When a magistrate by whom a judgment appealed from was rendered shall have gone out of office before a return is ordered, he shall, nevertheless, make a return in the same manner and with the like effect as if he were still in office.”). . S.C.Code Ann. § 18-7-60 (1985); see also Rule 75, SCRCP (record must be transmitted within 30 days to the clerk of the court to which the appeal is taken). . See Rule 75, SCRCP ("Upon receipt of the certified record, the clerk of the circuit court shall give notice in writing to the parties that the record has been filed."). . S.C.Code Ann.

section 18-7-80 (1985) reads, in pertinent part: If the return be defective the appellate court may direct a further or amended return as often as may be necessary and may compel a compliance with its order. . Chapman v. Computers, Parts & Repairs, Inc., 334 S.C. 387, 390, 513 S.E.2d 120, 122 (Ct.App.1999) ("When the return provided is inadequate, the appropriate remedy is for the circuit court to direct the magistrate to file an amended return...."). . See State v.

Barbee, 280 S.C. 328, 329, 313 S.E.2d 297, 298 (1984) (citations omitted) ("The burden was on ... the party appealing below to obtain the magistrate's compliance by mandamus if necessary."); State v. Adams, 244 S.C. 323, 326, 137 S.E.2d 100, 101 (1964) (citations omitted) ("When it became apparent to Respondent that the Magistrate had failed to perform the ministerial duty of transmitting the record of the trial Court to the appellate Court, it became incumbent upon Respondent to proceed by way of mandamus to enforce performance of his duty.”).