Agnew v. Adams
| Decision Date | 14 February 1887 |
| Parties | AGNEW v. ADAMS and others. |
| Court | South Carolina Supreme Court |
Appeal from circuit court, Richland county.
Bachman & Youmans, for appellant.
Arthur C. Moore, for respondents.
The plaintiff in this action sought to recover a tract of land in the possession of the defendants, and which he claimed belonged to him in fee. The verdict was for the defendants. The plaintiff moved for a new trial on the ground that the verdict was contrary to the weight of the evidence. This motion was refused in an order of which the following is a copy, to-wit:
One of the grounds of appeal involves the correctness of this order and it will be considered at once. It is not necessary to refer to authority for the position that the question of a new trial, upon the facts, insufficiency of testimony to support the verdict, etc., is a question entirely for the circuit judge, and that no motion of that kind can be reviewed by this court, unless error of law is alleged in the circuit judge in the order which he may make on such motion. There is no error of law alleged here; nor could there have been, as the motion was based, not--that the jury was misled in their verdict by some erroneous instruction as to the law involved, but upon an allegation that the weight of the evidence, as to the facts involved, was against said verdict. It is hardly necessary to repeat what we have so often said before this, that the facts of a case, and the force and effect of testimony to support said alleged facts, belong exclusively to the jury, under the constitution, subject to no control, except the circuit judge, on a motion for a new trial, whose judgment is final. This disposes of exceptions 10, 12, and 13 of appellant's appeal, as they all involve substantially the same ground.
In the progress of the trial the plaintiff offered in evidence a certain record from the court of common pleas in a case of D. Crawford & Sons, John Agnew & Sons, and John Agnew, Jr., Plaintiffs, v. Robert Adams, Amie Weston, James P. Adams, and Jesse E. Dent, Sheriff of Richland Co., in which a judgment of Amie Weston v. Robert Adams, obtained before the clerk of the court in 1874, was held by the circuit court to be a valid judgment, from which judgment there was no appeal by Adams. The plaintiff in his action here claimed title to the land in part through this judgment, he having purchased at sheriff's sale made under a levy of the execution issued on this judgment, and this record was offered to show that neither Adams, nor the defendants, his widow and children, could now dispute the validity of said judgment.
The facts in reference to this judgment are as follows: It was obtained before the clerk of the court in February, 1874, "not in term-time, and in open court," which was after the legislature had passed an act, in 1873, declaring that no judgment shall be obtained in the court of common pleas except during term-time, and in open court, etc. In the previous case of Adams v. Agnew, reported in 15 S.C. 42, this court held that, because of its being obtained from the clerk under the facts above, it was utterly void; and this, too, notwithstanding that in the mean time the Case of D. Crawford & Sons and others, Creditors, had been instituted to set aside said judgment for the defect stated, in which it was held on circuit, without appeal, to be good; this court saying, quoting from Freeman on Judgments, "Consent will not confer it, and it is so wanting in the color of judicial authority that it will not be reversed on appeal." Referring to Ex parte De Hay, 3 S.C. 567, this court said, further, that the mere omission on the part of Adams to appeal in the Case of Crawford & Sons, supra, "could not breathe vitality into that which never had existence."
In the second appeal (Agnew v. Adams, 17 S.C. 373) this court held that inasmuch as, in the first appeal, (15 S.C. supra,) the Amie Weston judgment had been declared utterly invalid, (as appears in the strong language above quoted,) its exclusion as evidence on the trial below was not error, whatever might have been the purpose of its introduction. We have seen no reason to change our opinion as then expressed. This exception assigning error in excluding this record is therefore overruled.
The second exception assigns error because his honor "ruled inadmissible all testimony going to show that Robert Adams and the plaintiff [we suppose the defendants are here meant] were estopped from averring against the validity of the judgment of Amie A. Weston against Robert Adams." This is very general, but we suppose the testimony referred to upon this point was the record in the case of D. Crawford & Sons against Robert Adams, Agnew, et al., supra, in which the Amie Weston judgment was held to be valid, to which Adams submitted without appeal. We know of no other testimony looking to an estoppel. None is pointed to in the exception, nor in appellant's argument, and the Crawford record has already been disposed of.
The third exception complains that his honor allowed William Wallace, a witness for defendants, to testify as to a conversation with F. W. McMaster, had after the matter in issue had been tried by the court, in which McMaster made some remarks, as contended by defendants, tending to show that he had waived his judgment against Robert Adams; and the fourth exception objects to this testimony as giving declarations of McMaster, and as introduced by defendants to contradict McMaster, their own witness. These exceptions will be better understood by a short statement here in reference to the connection of Mr. McMaster with the controversy. Robert ...
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