Dunlap v. Robinson

April 25, 1914. The opinion of the Court was delivered by This is the second appeal herein — the first being reported in 87 S.C. 577, 70 S.E. 313, where a general statement of the facts will be found.

The second trial resulted in a verdict in favor of the defendants, and the plaintiffs appealed upon exceptions which will be reported.

Upon hearing the motion for a new trial, his Honor, the presiding Judge, made the following order:

"The issues of fact in this case were submitted to a jury on the 27th day of February, 1912. After deliberating for several hours, the jury returned a verdict for the defendants for the land in dispute.

"This is a motion for a new trial upon the minutes of the Court. After hearing Mr. DePass, for the motion, I made an oral statement expressing my views, refusing the same, in substance as follows:

"``Without hesitation, my conclusion is, that if I were trying this case without the aid of a jury, I would decide just the opposite to the verdict. My conclusion being, that the plaintiffs have made out a legal title to the premises in question, on substantially the same state of facts as at the former trial. That the same legal points urged before me were passed upon at the former trial, and the former rulings were reversed by the Supreme Court of the State, who ordered a new trial, because certain issues of fact on the question of adverse possession, were not submitted to the jury. These issues of fact were upon this trial submitted to the jury, who, as above stated, decided them in favor of the defendant. I decline to disturb the finding of the jury for the reason that if such issues were of such importance as to amount to reversible error in not submitting them, I did not see my way clear in the face of the decision of the Supreme Court in setting aside such finding, although I would have arrived at a different conclusion.'

"It is, therefore, ordered, that the motion be, and is hereby, refused."

The appellant's attorneys argued exceptions numbered 1, 2, 4, 5, and 7 together, and we will adopt their classification.

Their contention in these exceptions is that his Honor, the presiding Judge, erred in submitting to the jury the question of adverse possession, as there was no legal evidence to support the same. It is only necessary to refer to the testimony to show that these exceptions cannot be sustained.

Fourth Exception:

When all the testimony is considered, it clearly appears that there is no reasonable ground for supposing that the ruling of the Circuit Judge affected the result. Therefore, the question whether it was erroneous does not properly arise.

Sixth Exception:

This exception cannot be sustained, for the reason that it is not error for a Circuit Judge to refuse a new trial because he was not disposed to put his judgment against that of the jury. State v.Rhodes, 44 S.C. 325,21 S.E. 807, 22 S.E. 306.

Eighth and Ninth Exceptions:

What has already been said disposes of these exceptions.

Judgment affirmed.

MR. JUSTICE HYDRICK concurs in the result.

MR. JUSTICE GAGE did not sit in this case.