37 S.C. 187 | S.C. | 1892
The opinion of the court was delivered by
This action was tried before his honor, Judge Norton, and a jury, at the October term, 1890, of the Court of Common Pleas for Abbeville County. On a verdict for the plaintiff, judgment was duly entered. Thereupon the defendants appealed. The facts of the controversy that occurred up to 1889 are fully set forth in the judgment of this court, in the case of Cheatham v. Morrison and Maddox, 31 S. C., 326. The result of that case was that the plaintiff was remitted in the court below' to his rights in the subject matter of this controversy, and to have the same enforced, as provided in sections 2398 and 2399 of the General Statutes of this State. Accordingly we fiud in the “Case” that the plaintiff here gave notice to M. M. Seawright and also to the defendants, Morrison and Maddox, that he would apply to the Court of Common Pleas for Abbeville County for an order requiring said Seawright to
We will now examine the grounds of appeal, eight in number originally, now only seven, as appellants have abandoned their first ground of appeal.
Mr. G-reenleaf, at section 41 of his work on Evidence, states the rule in these words: “When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation, or
“4. Because his honor erred in refusing to grant the motion for a non-suit, where there was a total failure of the testimony on the part of the plaintiff that there had been a breach of the bond sued upon.” The appellants in their argument very frankly admit that this ground of appeal depends upon the views of this court on the second and third grounds of appeal here. Having held that the judgment iu question was properly admitted, aud that it was conclusive, at least prima facie, of all issues necessarily involved therein, and.to that event being-testimony in the case at bar, of course it follows that there was not a total failure of the testimony. This ground of appeal is, therefore, dismissed.
“8. Because bis honor erred, in commenting upon tbe facts of tbe case, wben be charged tbe jury, that tbe interest was included to make up tbe judgment of Judge Izlar, and we cannot question now whether it was right or wrong; it is conclusive.” From tbe principles hereinbefore announced, it is obvious that there was no mistake made by tbe Circuit Judge; tbe words be used were such as were necessary to give to tbe jury a construction of tbe judgment in question. This ground of appeal is dismissed.
It is tbe judgment of this court, that the judgment of tbe Circuit Court be affirmed.