Southern Power Co v. White

• Decision Date: 07 August 1912
• Citation: 92 S.C. 219,75 S.E. 459
• Parties: SOUTHERN POWER CO. v. WHITE et al.
• Court: South Carolina Supreme Court

75 S.E. 459

(92 S.C. 219)

SOUTHERN POWER CO.

v.WHITE et al.

Supreme Court of South Carolina.

Aug. 7, 1912.

1. Jury (§ 31^*)—Right to Jury Trial—Infringement—Setting Aside Verdict. The constitutional guaranty of trial by jury does not deprive the circuit court of power to set aside a verdict fixing the com pensation in condemnation proceedings and to grant a new trial.

[Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 204-219; Dec. Dig. § 31.*]

2. Eminent Domain (§ 239*)—New Trial— Power to Grant.

Civ. Code 1902, § 2191, providing that the verdict in condemnation proceedings in the circuit court shall be conclusive unless a new trial is ordered by the Supreme Court, does not deprive the circuit court of power to set aside the verdict and grant a new trial; such provision appearing to have been inserted merely to provide a right of review by the Supreme Court, when viewed in the light of legislation contemporary with the condemnation act, particularly of Civ. Code 1902, § 2734, giving circuit courts power to grant new trials after verdict, of Code Civ. Proc. § 288 (adopted March 1, 1870, 14 St. at Large, p. 485), authorizing a trial judge to set aside a verdict and grant a new trial, and also in the fight of the fact that the Supreme Court has no appellate jurisdiction in such proceeding, but can correct only errors of law.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. §§615-620; Dec. Dig. § 239.*]

3. Eminent Domain (§ 239*) — Condemnation Proceedings—Trial—Right to Open.

Where both sides appealed from the verdict of the clerk's jury in condemnation proceedings, the landowners were entitled to open and reply on trial in the circuit court.

[Ed. Note.—For other cases, see Eminent Domain, Cent Dig. §§ 615-620; Dec. Dig. § 239.*]

Fraser, J., dissenting.

Appeal from Common Pleas Circuit Court of Spartanburg County; Ernest Gary, Judge.

"To be officially reported."

Action by the Southern Power Company against A. L. and T. J. White. From a judgment for defendants, plaintiff appeals. Reversed.

The order appealed from is as follows: "This was an appeal by both parties from the verdict of a jury impaneled by the clerk in condemnation, and came on for hearing at the November term of said court. An issue was framed submitting to the jury the question of the amount of compensation defendants were entitled to on account of the erection by the plaintiff of a line of steel towers and wires over and across defendants' lands in the suburbs of Spartanburg. The jury fixed the compensation at $3,500. Plaintiffs gave notice of a motion for a new trial, nisi, upon the minutes, and the same has just been argued before me; the plaintiff's attorneys contending that the verdict is excessive, and that I should set aside the verdict and grant a new trial, unless the defendants would remit from the verdict such amount as I might conclude was excessive. After hearing argument, 1 am of the opinion that, under the terms of the provisions of the Code, I am without jurisdiction or power to interfere with the verdict or grant a new trial, and that defendants' attorneys contention as to that is correct. The Code provides that the verdict of thejury, on appeal, shall be final and conclusive, unless set aside by the Supreme Court; and I so hold. The motion is refused for the foregoing reasons."

Osborne, Lucas & Cocke, of Charlotte, North Carolina, and Nicholls & Nicholls and John Gary Evans, all of Spartanburg, for appellant.

Bomar & Osborne, of Spartanburg for respondents.

HYDRICK, J. [1] The circuit court erred in holding that it had no power to set aside the verdict and grant a new trial, absolute or nisi. The argument that the court must be denied that power because the Constitution provides that the compensation for the use of land shall be ascertained by a jury is untenable on principle and authority. The Constitution also guarantees the right of trial by jury in many other cases in which the power of the court to set aside the verdicts of juries and grant new trials, absolute or nisi, has been sustained so frequently by this court that it is now unquestioned, and, in the face of these decisions, it cannot logically be maintained that the exercise of the power deprives the parties of their constitutional right of trial by jury. Warren v. Lagrone, 12 S. C. 45; Stuckey v. Railroad Co., 57 S. C. 395, 35 S. E. 550; Hall v. Railroad Co., 81 S. C. 533, 62 S. E. 848.

If the power is denied, it is only by implication from the use of the following words in section 2191, vol. 1, Code 1902, where it is said with regard to the verdict of the jury in the circuit court: "Whose verdict shall be final and conclusive, unless a new trial shall be ordered by the Supreme Court." The language quoted certainly does not expressly deny the power of the circuit court to set aside the verdict and grant a new trial. On the other hand, the power to do so is expressly conferred in section 2734, vol. 1, Code 1902, which reads: "Circuit courts shall have power to grant new trials in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law of this state."

Prior to the adoption of the Constitution of 1868 and the act from which section 2734 was taken, the circuit courts in this state had no power to grant new trials. That could be done only by the Supreme Court. But under the Constitution of 1868 and the present Constitution, the provisions of which, as to the matter under consideration, are substantially, if not identically, the same as those of the Constitution of 1868, the power to grant new trials, which is an appellate power, is denied to the Supreme Court, which has appellate jurisdiction only in equity cases, and its power in law cases is limited to the correction of errors of law. State v. Bailey, 1 S. C. 1; Byrd v. Small, 2 S. C. 388; State v. David, 14 S. C. 430.

A consideration of the provisions of the condemnation act, as it now appears in section 2191, above quoted, in the light of contemporaneous and subsequent legislation, reorganizing the courts and prescribing new methods of procedure therein, under the Constitution of 1868, will show conclusively that those words were never intended to have the effect which is now claimed for them; and, furthermore, that the necessary result of subsequent legislation has been to repeal that provision, if it can be construed to have that effect.

On August 28, 1868, it was enacted, pursuant to the limitations of the power of the Supreme Court by the Constitution, which had been ratified in April before, that "final judgments and decrees in civil and criminal actions in the circuit courts, brought there by original process, or removed there by appeal from any inferior court or jurisdiction, may be re-examined and reversed or affirmed in the Supreme Court, upon writ of error, " etc., 14 Stat. p. 12. The same statute provided for an appeal to the Supreme Court in equity cases. Naturally, therefore, we find in the original condemnation statute, which was enacted later, on September 22, 1808 (14 Stat. p. 89), these words: "Whose verdict shall be final and conclusive, unless, on writ of error, a new trial shall be ordered by the Supreme Court." It will be observed that these words are slightly different from those now found in section 2191. The reason for this difference becomes apparent when we remember that the writ of error was abolished on the adoption of the Code of Procedure on March 1, 1870, and an appeal substituted for it in all cases. 14 Stat. pp. 500, 527. Hence in the next codification (Rev. Stat. 1873, p. 354) we find the words "on writ of error" omitted.

In view of the practice which had obtained in this state for a long time, and the prevailing opinion that new trials could be granted only by the Supreme...