Mills v. Atlantic Coast Line R. R.

October 21, 1910. The opinion of the Court was delivered by This is a motion to dismiss an appeal from an order of Judge DeVore dated April 17, 1909 refusing motion for a new trial on after-discovered evidence.

During the pendency of the appeal from the judgment on verdict the defendant, appellant moved this Court for a suspension of the appeal that motion for new trial on after-discovered evidence could be made in the Circuit Court, and this Court, under the authority of State v. Lee, 80 S.C. 367,61 S.E. 657, decided that the Circuit Court had jurisdiction to entertain such a motion notwithstanding the pendency of an appeal, 82 S.C. 126, and that the proper practice was to make such motion in the Circuit Court.

Thereupon the motion was made before Judge DeVore on Circuit and resulted in the order dismissing the motion, upon the ground that the evidence submitted was not of such a nature as would probably change the result, should a new trial be ordered. The defendant gave notice of appeal from said order, which order with the exceptions thereto are herewith reported for such reference as the disposition of this motion may require.

The motion to dismiss is upon the following grounds:

1. Because no appeal will lie from an order refusing a motion for a new trial on the ground of after-discovered evidence unless there has been an abuse of discretion, and none such has been shown to exist in this case by the exceptions and assignments of error.

2. That it appears from the decree of Judge DeVore that he refused said motion upon the facts, in that, he was not satisfied that the showing made by the defendant would justify the Court in granting a new trial on the ground of after-discovered evidence based upon the affidavit of a detective, who subsequent to the trial, had watched the actions of the plaintiff; and no appeal will lie from such finding.

3. Because no appeal will lie from the order of Judge DeVore in this case, as the same involves a matter of discretion, which will not be reviewed in this Court in the absence of abuse of discretion.

The rule is well settled that a motion for a new trial on after-discovered evidence is addressed to the discretion of the Circuit Court and the refusal of such motion will not be reviewed unless it appears that there was abuse of discretion, or that the exercise of discretion was controlled by some error of law. State v. David, 14 S.C. 432; State v.Workman, 15 S.C. 547; Sams v. Hoover, 33 S.C. 404,12 S.E. 8; Seegers v. McCreery, 41 S.C. 549, 19 S.E. 696;Peeples v. Werner Co., 51 S.C. 405, 29 S.E. 659.

Such a motion must generally depend upon matters of fact, over which this Court has no jurisdiction in actions at law. Neither the order of Judge DeVore nor the exceptions thereto, which have been brought to our attention in this motion, show any abuse of discretion or error of law controlling the exercise of discretion.

In Sams v. Hoover, 33 S.C. 403, 12 S.E. 8, the Court declared: "To justify the granting of a motion for a new trial upon the ground of after-discovered evidence, the moving party must establish to the satisfaction of the Court before which the motion is made at least three facts: 1. That the proposed new evidence was discovered after the former trial. 2. That it could not by the use of due diligence have been discovered in time to be offered in the former trial. 3. That it is material."

This does not mean that such a showing entitles one as matter of right to a new trial, but that such facts are necessary to invoke the exercise of the Court's discretion. Notwithstanding such a showing the Court may properly decline to grant a new trial, for it may not appear that the ends of justice will be better promoted by a new trial.

While the evidence may be such as would be admissible on another trial and may be material, it may not be regarded by the Court as sufficiently material to warrant a belief that the result would be different.

That the result may possibly be different on another trial is not the test, for in cases of conflict of testimony there is always the possibility of a different result. It should at least appear to the Court that the newly-discovered testimony would probably change the result. Wardlaw v. OilMill, 74 S.C. 376, 54 S.E. 658.

In State v. David, 14 S.C. 432, the Court declared: "There can be no doubt that motions of this sort should be received with the utmost caution, because as it is said by a learned Judge, there are but few cases tried in which something new may not be hunted up and also because it tends to perjury."

As the record does not show an appealable or reviewable case the motion is granted and the appeal dismissed.