Steele v. C., C. & A. R.R. Co.

• Court: United States State Supreme Court of South Carolina
• Citation: 14 S.C. 324
• Decision Date: 22 November 1880
• Docket Number: CASE No. 941.
• Parties: STEELE v. C., C. & A. RAILROAD COMPANY.

14 S.C. 324

STEELE

v.C., C. & A. RAILROAD COMPANY.

CASE No. 941.

Supreme Court of South Carolina.

Nov. 22d, 1880.

1. The order of a Circuit judge granting leave to a party to make a motion before another judge, is without force.

2. A motion on the minutes for a new trial, upon the ground of excessive damages, made without argument, was refused by the trial judge, and an appeal therefrom dismissed by the Supreme Court for want of jurisdiction. Held, that a succeeding Circuit judge had no power to grant an application for a new trial upon a case settled, but based upon the same grounds as before.

3. The decision of one judge is not subject to be reviewed by another; and a motion once heard and decided, will only be reviewed upon a new state of facts arising after the decision.

4. Neither the judgment nor the order refusing a new trial on the minutes, could be opened as matter of favor under Section 197 of the code of procedure, because of a misinterpretation of law by counsel.

5. An expression of opinion ore tenus by one of the justices of the Supreme Court, after judgment pronounced, cannot affect the law of the case.

Before WALLACE, J., York, November, 1879.

This case is fully stated in the opinion of the court.

Mr. J. H. Rion, for appellant.

A motion may always be renewed upon sufficient grounds. 1 Till. & Shear. Pr. 432; 4 Abb. Pr. 404; 4 Wait's Pr. 612; 26 How. Pr. 396;Voorh. Code, 634 b;75 N. Y. 599. The code, Section 197, authorizes the relief asked here. Counsel here, as other distinguished counsel in Brickman's case and others, thought Judge Aldrich's order appealable. And the direct provisions of the statute misled. The motion now is not too late. Wait's An. Code 333. Motion renewed was under circumstances different from when motion was made; but if facts were not different, court had power to hear. 33 Barb. 654;74 N. Y. 379. Even the Supreme Court allows a rehearing. Judges Aldrich and Mackey do not object; and another judge may hear. 1 S. C. 141; 3 Wait's Pr. 423. See, too, 3 Wait's Pr. 442, s.Mr. W. B. Wilson, contra.

The opinion of the court was delivered by

MCGOWAN, A. J.

In July, 1878, John G. Steele, the plaintiff, brought an action against the Charlotte, Columbia and Augusta Railroad Company for damages on account of personal injuries received by him when a passenger on the railroad of the said company, in an accident at the bridge over the South Fork of Fishing creek, in York county, November 23d, 1877. The case was tried before Judge Aldrich, September, 1878, and, after much testimony, the jury rendered a verdict for the plaintiff for $10,000. A motion was made on the minutes of the judge for a new trial on the grounds-

“1. Because the verdict was contrary to the legal preponderance of the testimony.

2. Because the damages are excessive.”

Judge Aldrich refused to grant the motion. An appeal was taken from the order refusing the motion and the Supreme Court dismissed the appeal, not upon the merits, but upon the ground that the decision of the Circuit judge upon the facts was final and could not be reviewed by this court. Steele v. Charlotte, Columbia and Augusta R. R. Co., 11 S. C. 590.

May 3d, 1879, the attorney of the defendant corporation, after notice and on copies of the brief, the order of the Supreme Court and the affidavits, made a motion before Judge Mackey, at chambers, “for a new trial, and also for an order staying all proceedings upon the judgment of the plaintiff until the determination of this motion. The following are the affidavits referred to:

“State of South Carolina, county of Fairfield.-Personally appeared James H. Rion, and makes oath that he, as attorney for the Charlotte, Columbia and Augusta Railroad Company, defendant in the case of John G. Steele v. Charlotte, Columbia and Augusta Railroad Company, made the motion for a new trial in said case upon the judge's minutes, before his Honor, Judge A. P. Aldrich, the presiding judge, and that at the time of making the motion deponent was not aware of the decision of the Supreme Court in the case of Brickman v. South Carolina Railroad Company, and hence did not support his motion by an argument, he, at that time, supposing that the refusal of the presiding judge to grant the motion would be reviewable in the Supreme Court. That deponent is informed and believes that his Honor, the presiding judge, was also of the opinion that his refusal to grant the motion was reviewable in the Supreme Court. That deponents' inquiries and information produce the firm belief on his part that the Circuit judges and the bar of the state were not aware that the Supreme Court of the state would not review such refusal, before the publication of Volume VIII., South Carolina Reports, which were issued since said motion was made.

“JAMES H. RION.

“Sworn to before me, this 14th day of April, 1879.

“HENRY N. OBEAR, N. P.”

“State of South Carolina, county of Fairfield.-Personally appears James H. Rion and makes oath that on the 23d day of April, 1879, the Supreme Court of said state rendered a decision in the case of John G. Steele v. Charlotte, Columbia and Augusta Railroad Company, in which they did not pass upon the merits, and dismissed the appeal without prejudice to any right of the defendants; and at the time of rendering said decision the said court ore tenus stated that there was nothing to prevent the defendants from applying to the Circuit judge for a re-hearing of this motion for a new trial.

“JAMES H. RION,

“ Attorney for defendants.”

“Sworn to before me, this 23d day of April, 1879.

“HENRY N. OBEAR, N. P.”

Judge Mackey, after the affidavits were read and argument heard, refused the motion for a new trial, but July 26th, 1879, granted an order “that all proceedings under the judgment herein, be and the same are hereby stayed and enjoined, pending the determination of a motion for a new trial, to be made on behalf of the defendants herein at the next ensuing term of the Court of Common Pleas of the county of York.”

From this order the plaintiff appealed upon the following grounds:

“1. Because it is respectfully submitted that his Honor had no jurisdiction in the premises, and that said order and decree are without the authority of law.

2. That his Honor erred in holding that a motion for a new trial could be made at the next ensuing term of the Court of Common Pleas for York county.

3. That in the proceedings had before his Honor no such application as above was made and no notice thereof given to the plaintiff or his attorneys.

4. That said injunction was not in accordance with law, no levy having been made or affidavit that the same was threatened, and no bond required of defendant in said order.

5. That said cause was res adjudicata, having been heard and decided by the Supreme Court, and that the motion for leave to renew motion for new trial before the Circuit judge who heard the cause had also been refused by said Supreme Court.

6. That the motion for a new trial before Judge Aldrich was made upon the case as heard, and on the sole grounds that the verdict was contrary to the evidence, and excessive, and no exception was taken to his rulings upon the law pending said trial, and that defendants cannot now renew their motion for a new trial before any Circuit judge or Court of Common Pleas.”

Whilst this appeal was pending in the Supreme Court, the defendants, upon the papers before referred to and the decree of Judge Mackey, made a third motion for a new trial before Judge Wallace, sitting in term time for York county, who heard the motion, and November 7th, 1879, ordered that “said motion is hereby refused upon the ground that I have no power to grant it. That proceedings upon the plaintiff's judgment be stayed until the determination by the Supreme Court of the appeal from this order, which, it is agreed by the counsel, shall be heard by said court at the November Term, 1879, in connection with the appeal now pending in the above case, and which is now on the calendar of said court.”

The defendants excepted to this order and appeal to this court for that, “His Honor held that he had no power to grant the motion for a new trial then made.”

Judge Mackey's order granted leave to the defendants to renew their motion for a new trial before the judge who might hold the court for the next ensuing term for York county, and in the meantime restrained the enforcement of the judgment. The plaintiff appealed from this order, but afterwards consented that his appeal might be considered in connection with defendants' appeal from Judge Wallace's order. We shall not now consider whether Judge Mackey, at chambers, had the right to make the order appealed from. So much of that order as granted leave to make the motion before another judge was without force, as the judge before whom the motion was to be made, could, if necessary, as well grant leave as any other judge; and so much of that order as restrained the plaintiff from proceeding on his judgment until the motion could be made, was adopted by Judge Wallace and extended until the appeals could be heard, and is no longer important. We shall, therefore, confine ourselves to the last appeal, the consideration of which, so far as practical issues are concerned, will dispose of the whole matter.

Was it error of law for Judge Wallace to refuse to grant a new trial, on the ground that he had no power to grant it, Judge Aldrich having refused it? The original motion for a new trial was exclusively upon the facts of the case. It is quite certain that Judge Aldrich, who heard the case, had the right to hear and determine that motion, and, if he had refused to do so, upon the ground that he had no power, it would have been error in law and appealable to this court. “Circuit Courts shall have the 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 in the United States.” Gen. Stat. 497...