Hinson v. Catoe

• Decision Date: 22 November 1878
• Citation: 10 S.C. 311
• Parties: HINSON v. CATOE.
• Court: South Carolina Supreme Court

10 S.C. 311

HINSON v. CATOE.

Supreme Court of South Carolina.

November 22, 1878

A motion for a new trial on the minutes must be heard at the term at which the trial was had; it cannot be heard at a term held two years afterwards.

Facts which were within the knowledge of a party at the time of the trial cannot be made the foundation of a motion for a new trial on the ground of after-discovered evidence, though he was unable to prove them.

BEFORE MACKEY, J., AT LANCASTER, OCTOBER TERM, 1875.

This was an action by Charles F. Hinson against James Catoe, on a promissory note, which was tried at the October Term, 1875 when a verdict was rendered for the defendant.The plaintiff then made a motion on the minutes of the Court for a new trial.This motion was not heard until August, 1877, when a special term of the Court was held, when it was heard upon an affidavit by the plaintiff, dated 17th August, 1877, which stated:

" That in the trial of the above case for the recovery of said note the defendant was allowed credits as discounts-one for ten dollars and another for seventy-five dollars-for which said amounts the plaintiff had given the defendant credit upon a note against him, sued on by the plaintiff, before B. R. Clyburn, Trial Justice, upon which judgment was obtained, execution issued, and the balance thereof collected.

That at the time of the trial of the said cause the plaintiff could not avail himself of this testimony, for the record of the Trial Justice's case of the plaintiff, Charles F. Hinson against the defendant, James Catoe, tried before the said B R. Clyburn, the said Trial Justice, which contained the last mentioned note upon which the said credits of ten and seventy-five dollars were given, the same being in the possession of the said Trial Justice, was then lost; and though every search was made for the said record and note contained therein, the same could not at that time be found.

That the plaintiff offered proof otherwise of said credits; but upon objection being made by the defendant that the said record and note offered the best testimony as to whether the said credits had been made, and that it ought to be produced, the Court properly sustained the objection and ruled out the secondary proof.

That since the trial of the said action in this Court the testimony of the said credits has been discovered as having been made on the said note, by the finding of the said lost record with the note contained therein, and which is now in Court for its inspection, and proof of said credits of ten dollars and seventy-five dollars having been made by plaintiff upon the notes sued on before said Trial Justice, which were again claimed and allowed by the defendant as credits upon the notes sued on this action.

That deponent herewith submits that substantial justice has not been rendered him by the verdict of the jury in the said case, for and in that the defendant did recover judgment for a balance against the plaintiff by reason of there having been allowed to him by the said jury the credits given by the plaintiff on the other note herein mentioned, which, in addition to proper credits made on said note sued on in this Court by plaintiff, showed a balance in favor of defendant and which balance claimed by him as a counter claim resulted in a verdict against plaintiff for the amount thereof, but which...