Gossett v. Gladden

99 S.E. 752, 112 S.C. 144, 1919 S.C. LEXIS 102

Opinion

The opinion of the Court was delivered by

Mr. Chief Justice Gary.

This is an appeal from the following order of the Circuit Court:

“This case comes before me on appeal from an order of Magistrate D. K. Jennings, granting a new trial. The magistrate gave judgment for the plaintiff for the amount sued for. The defendant thereafter made a motion for a new trial on the ground of after-discovered evidence, which motion was supported by affidavits. The magistrate granted the motion and ordered a new trial of the case. The plaintiff thereupon gave notice of appeal from the order and filed exceptions. The exceptions, however, raised substantially but one question, to wit: Did the affidavits show that the defendant had discovered new evidence after the first trial which could not have been discovered by the use of due diligence? In my opinion, the defendant failed to show that he was entitled to a new trial, and the magistrate erred in granting the motion. The affidavits submitted, assuming that the facts therein stated are true, do not make out a case of after-discovered evidence, but aire mere recitations of the fact which, from their nature, must have been and were within the knowledge of the defendant when the first trial was had.

“It is, therefore, ordered and adjudged that the exceptions be sustained, the judgment of the magistrate granting a new trial reversed, and the judgment for the plaintiff, given by the magistrate on the first trial of the cause, affirmed.”

The only questions raised by the exceptions are of fact.

1,2 The order of the magistrate, granting a new trial on the ground of after-discovered evidence, was appealable to the Circuit Court; but the facts found by his Honor, the Circuit Judge, are not reviewable by this Court. Redfearn v. Douglass, 35 S. C. 569, 15 S. E. 244; Speer v. Meschine, 46 S. C. 505, 24 S. E. 329; Leather Goods Co. v. Sentz, 87 S. C. 267, 69 S. E. 390.

Appeal dismissed.