Detheridge v. Earle

• Decision Date: 06 May 1872
• Citation: 3 S.C. 396
• Parties: DETHERIDGE v. EARLE.
• Court: South Carolina Supreme Court

3 S.C. 396

DETHERIDGE v. EARLE.

Supreme Court of South Carolina.

May 6, 1872

Action on a promissory note dated April 5th, 1861, and due at one day. There was no defence, and the presiding Judge charged the jury that in strict law the plaintiff was entitled to recover the whole debt, principal and interest, " but that the jury might exercise a discretion as other juries had done, by giving only one half" the debt: Held Error, and the verdict being for one half the debt a new trial was ordered.

For error of law a new trial may be granted on appeal from the judgment, though no motion for a new trial was made before the Circuit Judge.

BEFORE ORR, J., AT GREENVILLE, SEPTEMBER TERM, 1871.

The appeal was heard upon a statement made by plaintiff's attorney, and served upon defendant's attorneys, and a notice of appeal, containing the grounds upon which the motion would be made. The statement contains the whole case and is as follows:

" This was an action brought by the plaintiff, A Detheridge, a citizen of Kentucky, against R. H. Earle defendant, a citizen of South Carolina, in the Common Pleas for Greenville County, South Carolina, and tried before His Honor James L. Orr, September Term, 1871, on a promissory note, dated 5th day of April, 1861, for two hundred dollars, due at one day. The case came on for trial on the 14th of September, 1871, and was submitted to the Court and jury for investigation. The note upon which the action was brought was admitted by the defendant, R. H. Earle, and no discount or payment pleaded or claimed. The amount of the note, principal and interest, on day of trial, was three hundred and forty-six dollars and eighteen cents. And this the plaintiff claimed and asked from the Court and jury. After argument of plaintiff's and defendant's counsel, his Honor the Judge charged the jury that in conformity to strict law, the plaintiff was entitled to recover the whole amount of the debt, principal, and interest as was claimed by the plaintiff, but that the jury might exercise a discretion as other juries had done, by giving only one-half or the amount offered plaintiff, to wit: ($170.72.) one hundred and seventy dollars and seventy-two cents. His Honor the Judge also charged the jury that in those cases which were tried in Edgefield, South Carolina, and appealed from, and new trials granted, because the juries had not found the full amount, that he had tried the same cases since under the orders for new trials, and that the juries found the same verdicts as those appealed from, or verdicts for only one-half of the debt and interest. After this charge of the Judge, Hon. James L. Orr, the jury retired and brought in and rendered a verdict for one hundred and seventy dollars and seventy-two cents, ($170.72.) From this verdict the plaintiff appeals to the Supreme Court, because the verdict is not supported by the facts in evidence as above stated, and because of the erroneous charge of the Judge. This statement of facts the plaintiff, through his attorney, proposes to the defendant's attorney for settlement, and upon this statement the plaintiff bases his appeal."

Stokes , for appellant, filed a brief containing the following points and authorities:

1. That the jury scaled the plaintiff's demand, finding for him only one hundred and seventy dollars and seventy-two cents, when they should have found three hundred and forty-six dollars and eighteen cents, ($346.18,) the aggregate amount of principal and interest, and which was substantially directed and recommended by his Honor the Judge, contrary to law.- Carwile vs. Harvey , 15 Rich. 314.

In an action on bond, where no evidence is given by the defendant, a verdict for only one-fourth of the debt is in violation of law, and a new trial will be ordered.- Workman et al. , vs. Bolling , 2 S. C., 458.

2. The Supreme Court may give final judgment for whole debt and interest, without ordering new trial.-See Sec. 356 of Title 11 of Code, Part II.

Upon an appeal from a judgment or order, the appellate Court may reverse, affirm or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate Court may make restitution of all property and rights lost by the erroneous judgment.-Sec. 12, Title 2 of Code, Part I.

The Supreme Court may reverse, affirm or modify the judgment, decree or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the Court below, to be enforced according to law.

Earle & Blythe , for appellee, filed a brief containing their points and authorities, as follows:

I. Motion for a new trial must be made to the Circuit Court.-Ch III, Title VIII, of Code.

Objection to the verdict should be raised by motion for new trial.- Benedict vs. N. Y. and Harlem R. R. Co. , 8 N. Y. Leg. Obs., 168.

An appeal to the General Term from a judgment brings up only question of law. The Court cannot inquire whether the verdict was against evidence.- Buckley vs. Keteltas , 4 Sanford, 450, N. Y Sup. Crt., 1851.

The merits cannot be reviewed upon the evidence, on an appeal from a judgment on a verdict, if there is no appeal from any order denying a new trial.-N. Y. Sup. Crt., 1857; Brown vs. Richardson , 1 Bosw. 402.

II. The appellant's other proposition is: " To modify the finding of the jury."

This is not within the province of the Court.

" On appeal to the General Term from a judgment, the question whether the verdict was not against the weight of evidence cannot properly be raised. By Section 348 of the Code, an appeal upon the law only lies from a judgment entered at a special term, unless the trial be had before the Court or Referees. When the trial is by jury, their finding can only be reviewed by a motion for a new trial under Section 349; and if the moving party is not satisfied with the decision of the special term on the motion, he should appeal from the order. An appeal from the judgment does not bring such an order under review, except so far as the consideration of the questions of law raised at the trial, and the appellant's exceptions there taken may have that effect. Upon appeal from the judgment, the finding of the jury must be deemed final and conclusive as to the facts." -N. Y. Sup. Court, 1856; Marquart vs. LaFarge , 5 Duer. 559; N. Y. Com. Pl., 1854; Keys vs. Devlin , 3; E. D. Smith, 518; and see Stelliner vs. The Granite Ins. Co. , 5 Deur. 594.

" Generally, the question in a Court of review is whether the judgment of the subordinate tribunal was erroneous when pronounced on the law as it then stood. On an appeal from a judgment on a verdict by a jury, the appellant cannot...