Walker v. Quinn , 134 S.C. 510 ( 1926 )

The defendants' third, fourth, and fifth exceptions raise the question as to the amount which plaintiffs should have been required to remit as a condition for refusing a new trial. The opinion of Mr. Justice Cothran shows that the verdict erroneously included the three items aggregating $3,526.35. The case shows that plaintiffs did not remit any portion of the verdict pursuant to the order of the Circuit Judge. Compliance would have deprived plaintiffs of their right to test the validity of the order on appeal. Had there been no appeal, the failure of plaintiffs to remit within the time specified in the Circuit order would have given the defendants "a new trial absolutely" — i. e., unconditionally — without any option on the part of plaintiffs. Barnett v. Gottlieb,105 S.C. 69; 89 S.E., 641.

The plaintiffs exercised their right to appeal, and, but for the provisions of Code Civ. Proc. § 26, Sub. 2, the appeal would have had the effect of extending the time for the exercise of the option given plaintiffs to remit, and thus to avoid a new trial, for 10 days beyond the time when the remittitur shall have gone down to the Circuit Court. Barnwellv. Marion, 56 S.C. 55; 33 S.E., 719. This Code provision was intended to penalize appeals from orders granting new trials (Daughty v. R.R. Co., 92 S.C. 361;75 S.E., 553), and should, I think, after affirmance on plaintiffs' appeal of an order granting a new trial nisi, when the time within which the plaintiffs were required by the Circuit Judge to exercise the option to remit has expired, be construed to make the order, in effect, such as it was construed to be in Barnett v. Gottlieb, supra, an unconditional order for a new trial. The plaintiffs should not be allowed, in the event of an appeal from an order granting a new trialnisi, to speculate upon their chances, and, after the affirmance of the order, recover a judgment for the amount which they had an opportunity to accept before the appeal, rather than allow the defendants the new trial theretofore ordered, in the event of the failure to remit. Beers v. N.Y., N.H. H.R. Co., 89 Conn., 711; 94 A., 919. Swett v. Gray, 141 Col., 63; 74 P., 439, 441. Winningham v. Philbrick,56 Wn., 38; 105 P., 144, 145.

If I am correct in above conclusions, a new trial should unconditionally follow the affirmance of the order on the plaintiffs' appeal without the necessity to consider defendants' exceptions.

If the plaintiffs' option to remit survives their failure to show error on appeal, then it is necessary to consider defendants' exceptions as to the amount which the plaintiffs should be required to remit, and in that view of the case I would concur in the judgment pronounced by Mr. Justice Cothran. It is proper for this Court, in reviewing the defendants' appeal from the judgment to permit the plaintiffs in whose favor the verdict on judgment was rendered, to avoid the granting of a new trial on account of error affecting only a part thereof by entering a remittitur as to such erroneous part, when, as in this case, the Court can clearly distinguish and separate the same. Blowers v. Ry., 74 S.C. 221;54 S.E., 368. Anderson v. W.U. Tel. Co., 85 S.C. 253,258; 67 S.E., 232, 477. Hansen v. Boyd, 161 U.S. 411;16 S.Ct., 571; 40 L.Ed., 746. But inasmuch as the disposition of the plaintiffs' appeal operates to destroy this option to remit, the case should be remanded to the Circuit Court unconditionally for a new trial.

MR. CHIEF JUSTICE GARY concurs.