Ex Parte Zeigler

March 16, 1911. The opinion of the Court was delivered by This is the second appeal in this case. The facts are fully stated in the former appeal.83 S.C. 78, 63 S.E. 513. When the case was sent back to the Circuit Court, it was referred to the master to take and report the testimony, which was done. Thereafter, petitioners moved to be allowed to take the testimony of P.J. Zeigler, and submitted, in support of their motion, affidavits tending to show inadvertence and excusable neglect on the part of the attorney, who had first represented them, caused by his physical condition, as the reason why the testimony had not been taken at the reference before the master. The respondent submitted counter affidavits tending to rebut the showing as to the physical condition of their attorney, and tending to show that the testimony was not taken because their attorney did not consider it necessary. The Circuit Judge allowed the testimony to be taken in open Court, giving respondent an apportunity to reply to it.

The purpose of a reference to take testimony is to aid the Court, and facilitate the hearing on the merits. It is within the discretion of the Court, on motion of either party, or on its own motion, either to recommit a case for the taking of additional testimony, or to take such testimony in Court, sufficient opportunity being allowed to the parties to meet such testimony. The discretion was properly exercised in this case. The opinion of the Circuit Court upon the merits of the case is satisfactory, and for the reasons therein stated, the judgment below is affirmed.