Walker v. Quinn

Decision Date24 May 1926
Docket Number11995.
Citation133 S.E. 444,134 S.C. 510
PartiesWALKER et al. v. QUINN et al.
CourtSouth Carolina Supreme Court

Appeal from Common Pleas Circuit Court of Orangeburg County; Charles Carroll Simms, Special Judge.

Action by N. G. Walker and others against John J. Quinn and others. Judgment for plaintiffs, and, from an order granting new trial nisi, plaintiffs appeal, and defendants appeal from so much of the order as rejected certain grounds of motion for new trial. Judgment modified and affirmed.

Townsend Circuit Judge, Gary, C.J., Watts, J., and Rice and Dennis Circuit Judges, dissenting.

A. H Moss, of Orangeburg, and Dunlap & Dunlap, of Rock Hill, for appellants.

Wolfe & Berry, of Orangeburg, for respondents.

COTHRAN J.

This action is for damages resulting from the alleged breach of a contract entered into between the parties, under which Quinn & Co. undertook to do certain embankment work, in connection with another contract which Massey & Co. had entered into with the Marion county highway commission, covering certain road work at Gallivant's Ferry in Marion county.

The case was tried before Hon. Charles Carroll Simms, special judge, and a jury, and resulted in a verdict of $6,739.85 in favor of the plaintiffs. The defendants moved for a new trial upon the general ground that the verdict was not sustained by the evidence. This motion was refused, and, there being no exception thereto, as there could not have been with any hope of success, it passes out of view. At the same time the defendants moved for a new trial nisi upon three grounds hereinafter set forth. The presiding Judge construing the contract between Massey & Co. and Quinn & Co., held that the verdict was excessive to the extent of $622.38, and ordered a new trial, in the event that the plaintiffs declined within a fixed time to enter a remission of the verdict to the extent of such excess, thus sustaining the first ground and overruling the other two. The plaintiffs declined to remit, and have appealed from this order for a new trial nisi, upon the ground that the presiding judge committed error in his construction of the contract. The defendants have appealed from so much of the order as rejected the second and third grounds of the motion.

It has been suggested that both appeals should be dismissed upon the ground that, as this court, in the event of its affirmance of the order upon either appeal, could not render judgment absolute upon the right of the appellant, the order is not appealable. The correctness of this proposition confronts the court upon the threshold of the discussion.

Directing attention first to the appeal of the plaintiffs from the order conditionally granting a new trial, the question at issue is:

"Does the appealableness of the order granting a new trial depend upon the power of the Supreme Court, in the event that the order be sustained, to render judgment absolute upon the right of the appellant?"

The result of the suggestion would be to dismiss both appeals, upon the ground that in neither instance could the court render judgment absolute upon the right of the appellant; in other words, that the appealableness of an order, either granting or refusing a motion for a new trial, depends upon the power of the court, in the event of affirmance, to render judgment absolute upon the right of the appellant.

The statute applicable is as follows (section 26, Code Civ. Procedure):

"The Supreme Court shall have appellate jurisdiction for correction of errors of law in law cases, and shall review upon appeal: 1. *** 2. An order affecting a substantial right *** and when such order grants or refuses a new trial; *** upon any appeal from an order granting a new trial, *** if the Supreme Court shall determine that no error was committed in granting the new trial, it shall render judgment absolute upon the right of the appellant. ***"

Clearly the duty and power of the Supreme Court to render judgment absolute are limited to an appeal from an order granting a new trial. There is nothing said in the statute as to such action of the court in an appeal from an order refusing a new trial; and it is manifest that the dismissal of the defendants' appeal from the order refusing a new trial, upon the ground that this court could not render judgment absolute upon the right of the appellant, cannot be sustained.

Recurring to the immediate question before the court in connection with the exception of the plaintiffs, charging error in the granting of the order for a new trial nisi, does the appealableness of the order depend upon the power of the court to render judgment absolute upon the right of the appellant, in the event of the affirmance of the order?

That the circuit judge, in requiring a remission of $622.38, acted upon his construction of the contract between Massey & Co. and Quinn & Co., conclusively appears, not only from the terms of the order, but also from the exception of the plaintiffs. The order declares: "The court holding that the defendants' liability is limited to 60,000 cubic yards by the contract." The error charged in the exception is: "In holding that under the contract *** respondents (plaintiffs) could only obtain redress *** on a basis of 60,000 yards minimum."

The order was therefore based upon a matter of law; it did not involve disputed questions of fact, a consideration of the weight, and sufficiency of the evidence, and was clearly appealable. That the construction of a written contract by the court involved a matter of law and nothing else is too manifest for discussion.

The right of the losing party to appeal from an order granting a new trial is specifically and in mandatory fashion conferred by the section of the Code which has been quoted:

"The Supreme Court *** shall review upon appeal *** an order affecting a substantial right *** and when such order grants or refuses a new trial."

The action of the Supreme Court, directed to be taken after it shall have entertained the appeal and decided that no error was committed, cannot possibly affect the appealableness of the order, for otherwise the anomalous situation would be presented of the court assuming jurisdiction of the appeal, determining the appeal, and then deciding that, for the reason that it could not then render judgment absolute upon the right of the appellant, it never did have jurisdiction of the appeal, as the order was not appealable.

The case of Daughty v. Ry. Co., 92 S.C. 361, 75 S.E. 553, is conclusive of the point at issue. In an elaborate opinion by Justice Hydrick the statutes and decisions are ably reviewed. It is there said:

"The language of the Code above quoted makes it perfectly clear that this court must entertain appeals from orders which grant new trials, when they are based upon errors of law. The terms of the statute are mandatory-'shall review.' *** The court cannot, therefore, refuse to consider an appeal from an order granting a new trial, when it is based on error of law, without putting itself in the position of ignoring or violating a constitutional statute, which, in plain and unmistakable terms, makes an order granting a new trial appealable."

The suggestion that the appealableness of the order depended upon the action which the court was directed to take, under the circumstances already stated, did not receive the slightest notice, and in our opinion did not deserve any .

In Glover v. Heyward, 108 S.C. 487, 94 S.E. 878, the court, in an opinion by Mr. Justice Watts, says:

"Ordinarily an appeal from an order granting a new trial is not allowed unless this court can give judgment absolute. However, in this case the new trial was based and the order granted upon what his honor conceived to be an error of law on his part in his charge to the jury, and from such an order an appeal will lie." In Marshall v. Railroad Co., 57 S.C. 138, 35 S.E. 497, the court says:
"The well-settled rule is that this court cannot review an order refusing or granting a new trial, except for error of law."

In Miller v. R. Co., 95 S.C. 471, 79 S.E. 645, the court says:

"An order granting or refusing a new trial is expressly made appealable in section 11(D), subd. 2, of the Code of Procedure," now section 26.

In Davis-McGee Co. v. Marett, 129 S.C. 36, 123 S.E. 323, the court, in an opinion by Mr. Justice Watts, says: "Order granting new trial is appealable when based solely upon law."

In Dantzler v. Fenderburg, 129 S.C. 79, 123 S.E. 788, the court again recognizes that an order granting a new trial upon a matter of law is appealable.

The case of Dixon v. Ry. Co., 83 S.C. 393, 65 S.E. 351, deciding that an order granting a new trial upon a matter of law is not appealable, is expressly overruled in the Daughty Case, 92 S.C. 361, 75 S.E. 553.

It is contended that the point under discussion has been decided by this court in the case of Ingram v. Hines, 126 S.C. 509, 120 S.E. 493, in favor of the indicated suggestion. The opinion in that case was written by the writer of this opinion, and he feels free to criticise it and to acknowledge an error contained in it. In that case the plaintiff appealed from an order granting a new trial, setting aside a verdict which had been rendered in his favor. It is distinctly held in the leading opinion as follows:

"His [the circuit judge's] order granting a new trial was based upon a consideration of the evidence, and a conclusion therefrom inconsistent with the verdict. This is shown by his refusal to direct a verdict, and from the terms of his order, which will be reported. It is clear from the authorities that under these circumstances his order is not appealable" (citing cases).

That declaration was sufficient to decide the case. The leading opinion, however, proceeds in...

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4 cases
  • Hayes v. Atlantic Coast Line R. Co.
    • United States
    • United States State Supreme Court of South Carolina
    • March 26, 1941
    ...... question of law, and not as a matter of discretion based upon. the weight of the testimony, is clearly appealable. (Walker et al. v. Quinn et al., 134 S.C. 510, 133. S.E. 144), and it is equally clear that a question of. evidence or no evidence is a question of law. In ......
  • Sellars v. Collins
    • United States
    • United States State Supreme Court of South Carolina
    • February 2, 1948
    ......Hines, Director General,. 126 S.C. 509, 120 S.E. 493; Snipes v. Davis, Director. General, et al., 131 S.C. 298, 127 S.E. 447; Walker,. et al., v. Quinn, et al., 134 S.C. 510, 133 S.E. 444;. King v. Western Union Tel. Co., et al., 167 S.C. 500, 166 S.E. 629; O'Barr v. Pioneer ......
  • In re Richter's Will
    • United States
    • Supreme Court of New Mexico
    • September 24, 1938
    ...of a ruling on a question of law will be determined on appeal, independently of the judgment of the trial court." In Walker v. Quinn, 134 S.C. 510, 133 S.E. 444, the court was dealing with a statute permitting an appeal from "an order affecting a substantial right made in an action, when su......
  • Charleston & W.C. Ry. Co. v. Spartanburg Bonded Warehouse, Inc.
    • United States
    • United States State Supreme Court of South Carolina
    • August 16, 1929
    ...... which was not the case here, the refusal is not a legitimate. ground of appeal. Walker v. Quinn, 134 S.C. 510, 133. S.E. 444. . .          III. The third exception complains of error in not allowing the. introduction of a ......

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