57 S.E. 1104 | S.C. | 1907
July 10, 1907. The opinion of the Court was delivered by
In the year 1899, the plaintiff herein, John C. Lampley, began this action against the defendant railroad company for the loss of his oat crop and certain damage to his property alleged to have been caused by the negligent construction of its railroad. The lands in question are situated in Darlington County in what is known as Roblyns Neck, a horse shoe shaped projection *321
formed by a curve of the Pee Dee River. At this point the river for some distance swerves from its regular course towards the sea and takes an easterly direction until it strikes Hunts Bluff, on the Marlboro side, and is here turned back in a westerly direction, thus making the toe of the horse shoe opposite Marlboro. This whole neck is lowland and in time of freshets is subject to overflow, the water taking a direct course across the neck instead of flowing around. Years ago in order to prevent overflows levees were built around the neck. In 1875, however, a flood of unprecedented size broke through, and since that time, according to the testimony, farming there has been attended with more or less risk of loss. The railroad enters this neck at the part corresponding to the heel of the horse shoe and passes out at the toe, where it crosses the river to the Marlboro side. It runs through plaintiff's lands and divides them, leaving a portion of them on the upper side and the other part on the lower side. The road on the Darlington side is to a large extent laid on embankments of earth, there being, according to the evidence, only about ten per cent. trestle work. It is in this that the plaintiff alleges negligence on the part of the defendant. He complains that the road not having sufficient trestle work, in the year 1899, held the water on his land longer than it would have remained otherwise and thus destroyed his oat crop. And also, that by reason of insufficient outlets a head of water was collected and as a result of the pressure his land was scoured and to a large extent rendered valueless. The case has given rise to much litigation. Twice has the jury found a verdict for the plaintiff and as many times has this Court sent it back for a new trial.
In considering the refusal to grant the nonsuit the first question which requires our attention is the power of this Court with regard to granting or withholding such remedy. In case a nonsuit should have been granted by the Court below, has this Court power to do what that Court should have done, namely: grant the nonsuit? The question first came up for decision in the case of Sampson Wyatt v. Singer Mfg. Co.,
Shortly afterwards, in Willis v. Knox,
It is also alleged on the ground that there was absolutely no testimony to sustain plaintiff's action, that the Circuit Judge erred in granting a new trial. Section 11, subdivision 2, of the Code of Procedure, as adopted in 1870, provided "that this Court should have power to review upon appeal, an order affecting a substantial right made in an action when such order in effect determines the action, and prevents a judgment from which an appeal might be taken, or discontinues the action, and when such order grants or refuses a new trial; but no appeal to the Supreme Court from an order granting a new trial, on a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, on a case made or exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the proceedings are remitted to the Court from which the appeal was taken, an assessment of damages or other proceedings, to render the judgment effectual, may be then and there had, in cases where such subsequent proceedings are requisite." Sometime afterwards this section was amended by striking out the words, "but no appeal to the Supreme Court from an order granting a new trial, on a case made or bill of exceptions shall be effectual for any purpose, unless the notice of appeal contain an assent on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant." The section, so far as it relates to orders granting new trials, now reads: "Upon every appeal from an order granting a new trial, on case made or exceptions taken, if the Supreme Court shall determine that no error was committed in granting the new trial, it shall render judgment absolute upon the right of the appellant." The question then is, what power has this Court under this legislation? By the Constitution *325 it is created a Court having appellate jurisdiction only in chancery cases and only in such cases having power to review the findings of fact as well as of law. Even in chancery cases where facts are settled by a jury and the verdict is not set aside it has no power to review the facts. Likewise in law cases. It must look only for errors of law, errors of fact being beyond its jurisdiction. There are many cases in this State holding that in law cases the Supreme Court has no jurisdiction as to matters of fact. Construing the question under consideration in the light of the powers of the Court it would seem that only those orders granting new trials are appealable in cases in which, if the Court determine that there was no error of law committed, it may then go further and render judgment absolute upon the right of the plaintiff. The provision of the Code is mandatory. It does not give this Court discretionary power and allow it to render final judgment if it see fit, but it requires that it shall render such judgment. An impossibility cannot be required of the Court, nor can an act of the Legislature supersede the Constitution and give the Court power to decide questions of fact as well as of law. When a duty is required of any officer or tribunal such officer or tribunal must be vested with power to perform that duty. In the present case we are met with the anomalous fact of the Legislature imposing a duty and the Constitution denying the power to perform it, if we attempt to apply the act to all cases. The Constitution, however, being of superior force to a legislative act, so far as the power conferred is repugnant to the Constitution, it is of no effect. Also a cardinal rule of construction is that when an act can be so construed as not to be repugnant to the Constitution, it must receive that construction. Applying this rule to the act now under consideration if we hold that it was intended to apply only to those cases in which the Court has power to render final judgment, that is, cases involving questions of law only, then all difficulty disappears and the Court can easily perform the duty imposed upon it. A practical as well as *326 a legal point of view leads to the conclusion that such was the intention of the Legislature. Orders granting new trials are often rendered in cases involving intricate questions of fact which must necessarily be submitted to a jury for decision. Not infrequently the jury is called upon to visit the scene of the act giving rise to the cause of action and to view personally the surroundings. It can readily be seen that it would be highly impracticable for this Court to perform such a duty. Apart from the time lost and the expense, it would have a tendency to detract from the dignity and respect of the highest tribunal of the commonwealth.
The case of Caston v. Brock,
According to the conclusion reached, the assent of the appellant waived all questions of fact and left the Court to decide only questions of law, hence giving it full jurisdiction. Now that the act no longer requires assent of the appellant, can it be held that in all cases judgment absolute must be rendered? We have endeavored to show above that such was not and could not be the intention. The power of granting new trials is discretionary with the trial Judge and his decision usually final. In some jurisdictions it has been held that it is not competent to review an order granting a new trial on the ground that such order is not final and that it does not affect a substantial right. There *328 is, however, more or less inconvenience, as was said above, connected with such an order and for the purpose of alleviating this condition as much as possible our Legislature gave the person aggrieved a right to appeal in cases in which this Court could render final judgment. Where, however, final judgment cannot be rendered this right to appeal is denied on grounds of public policy and justice. As was said in the language of the Court quoted above, otherwise the appellant would have two chances at his case and would have undue advantage of his opponent. Therefore, an appeal from an order granting a new trial can be taken only in cases which permit of judgment absolute.
In the case now under consideration many and intricate facts are involved. Accordingly it is not necessary for this Court to decide whether there was any evidence of negligence produced. The order granting the new trial is not appealable.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.