Erskine v. Erskine

May 17, 1917. The opinion of the Court was delivered by The facts of the case are fully stated in the opinion of the Circuit Court, which will be reported. It is unnecessary for us to decide whether the Circuit Court erred in holding the testimony of the Hewins incompetent, because this Court waived objection to their testimony, and, after giving it due consideration, reached the conclusion, in which we concur, that, upon consideration of all the evidence, including that of the Hewins, plaintiff failed to prove his case by that measure of proof required in cases like this, which is stated in the decisions cited by the Circuit Court.

We concur, also, with the Court below that, in actions in equity, the parties are not entitled, as a matter of right, to trial by jury. Even when they comply with the statute and rule 28 of the Circuit Court, the matter is still, by express terms of the statute (section 312, Code Civ. Proc.), in the discretion of the Court (Osteen v. Bultman,90 S.C. 452, 73 S.E. 874, and cases cited by the Court). It is well understood that this Court will not interfere with the exercise of discretion by the trial Court, unless it is made to appear that its exercise was not only manifestly erroneous, but also prejudicial to the party complaining. There was no such error here.

It appears that the deed from appellant to his mother was executed in the office of Mr. K.P. Smith, who testified that he cautioned appellant as to what he was doing, and told him the effect of it, and that appellant replied that he understood what he was doing. On further examination of the witness by appellant's attorney, the record shows the following, which is the basis of an assignment of error in excluding the answer to this question:

"Did he or not, at the time he stated he knew what he was doing, say anything about a contract with his mother? Mr. Cochran: That would be a self-serving declaration. The Court: You can't prove a contract that way. Objection sustained."

Appellant contends that the answer should have been admitted as part of the res gestae. We have held in numerous cases that the burden rests upon one asking this Court to reverse a judgment to show not only that there was error, but also that it was prejudicial to him. Now in this case appellant acquiesced in the ruling of the Court without even suggesting the ground upon which he now contends the evidence was admissible. He should have suggested that ground of admissibility to the trial Court and asked for a ruling upon it. But there is another reason why it cannot avail appellant. It does not appear that the exclusion of the answer to the question was prejudicial to appellant. As said above, the burden was on appellant to make it appear that it was. He should, therefore, have asked the trial Court — the jury being excluded, if that was deemed necessary — to hear the answer and let it go down upon the record in order that its relevancy and competency might be seen and made to appear. That the wisdom and expediency of the procedure suggested may be made more apparent, let us suppose that we should hold that the testimony was competent, and send the case back for a new trial for error in excluding it, and, upon the new trial, the witness should answer that appellant said nothing about a contract with his mother. In what has been said, we must not be understood as holding, even inferentially, that there was or was not error in the ruling. All we hold is that appellant has not put himself in position to ask that we decide that question.Safren v. Meyer, 103 S.C. 356, 88 S.E. 3; Raleigh etc. R.Co. v. Jones, 104 S.C. 332, 88 S.E. 896. But even if the testimony had been admitted, and had been as favorable to appellant as he would have us conjecture, it would not have been sufficient to affect the result.

Judgment affirmed.