Hinson v. Catoe
10 S.C. 311
S.C.
1878
Check Treatment

The opinion of the Court was delivered by

Haskell, A. J.

The order appealed from cannot come under the provisions of the Act of 1869, (Rev. Stat., p. 497,) for no judgment has been entered. Section 289 of the Code, Revised Statutes, p. 636, requires that a motion for a new trial, except where it is based upon a case and “ exceptions,” shall “ be heard and decided at the same term.” By the context it' is made apparent that the “same term” means the term at which the trial was had.

The motion in this instance was made at the same term on the minutes, but was heard and decided after the lapse of nearly two years, during which time, of course, several terms had occurred. The affidavit to support the motion bears date nearly two years after the trial and is of the date of the term at which the motion was heard and decided. To hear and decide at such term a motion made merely upon the minutes made by the Judge at the trial was clearly wrong. Moreover, the affidavit shows conclusively that the evidence therein set up was not “ newly-discovered,” as stated in the *314Judge’s order, but had been in the knowledge of the respondent at the time of the trial, and was then offered, but objection was made that the mode of proof by which he sought to introduce the evidence was secondary. The objection was sustained by the Court, and no appeal was taken. It is useless for the respondent to say that the papers which constituted the best evidence had been lost and now are found. On proof of the loss in the manner prescribed by the rules of evidence the secondary proof would have been admissible. The respondent admits that at the time of the trial he was acquainted with the facts which he sets up now as ground for new trial, but that he had failed in his efforts to prove them, by a mistaken view, on his part, of the law of evidence. That is no ground for a new trial.

The order granting a new trial is reversed.

Motion granted.

Willard, C. J., and Molver, A. J., concurred.