33 S.C. 401 | S.C. | 1890
The opinion of the court was delivered by.
The action in this case was originally instituted in the trial justice’s court, and the plaintiff having recovered judgment there, the defendant gave due notice of appeal to the Circuit Court. Upon the call of the case in the last mentioned court, defendant moved for a new trial in the trial justice’s court, upon the ground of after-discovered evidence, set out in an affidavit of one Williams, which may be found in the '‘Case;” it being then too late to move before the trial justice for a new trial within the time prescribed by statute. His honor, Judge Witherspoon, dismissed the motion upon two grounds-: 1st. Because the Circuit Court had no authority to grant the motion. 2nd. Because, even if the Circuit Court had such authority, no sufficient grounds had been shown for granting the motion. From this judgment defendant appeals, alleging error in both of the grounds upon which the Circuit Judge based his judgment in refusing the motion.
The appellate jurisdiction of the Circuit Court in cases originating in a trial justice’s court does not embrace the hearing of a motion for a new trial in the latter court upon the ground of after-discovered evidence; for an appeal necessarily involves the idea of reviewing some action of the court below, alleged to be erroneous, and a motion for a new trial upon the ground of after-discovered evidence does not involve such an idea. It does not allege any error in the action of the court from which the appeal is taken, but is designed solely to supply a supposed deficiency in the evidence upon which the court below acted. It has none of the features of an appeal, but it is a purely original matter, for the first time brought to the attention of the court, and hence the Circuit Court, exercising only appellate jurisdiction, had no authority to entertain such motion.
It is upon this principle that this court, having only appellate jurisdiction, except in a certain class of cases, has invariably declined to entertain a motion for a new trial in the Circuit Court upon the ground of after-discovered evidence, but has only gone so far as to suspend the appeal, so that the appellant may make the motion before the Circuit Court, provided a proper prima facie showing is made here to warrant such a course. But it does not
We also concur with him that, even if he had such authority, the motion should have' been refused. 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: 1st. That the proposed new evidence was discovered after -the former trial. 2nd. That it could not, by the use of due diligence, have been discovered in time to be offered at the former trial. 3rd. That it is material. State v. Workman, 15 S. C., 540; Durant v. Philpot, 16 Id., 116. The affidavit of Williams, above referred to, is wholly deficient in regard to the first two of these facts, and there is not enough in the “Case” to enable us tp determine whether the proposed new evidence was material or not, as we are not informed what was the real issue
In addition to this, we may add that the conclusion of the Circuit Judge, that the showing made is not sufficient to warrant the granting of the motion, is final and not appealable, unless it appears, as it did in the case of State v. David, supra, that such conclusion was based upon some erroneous ruling of law.
The judgment of this court is, that the judgment of the Circuit Court be affirmed.