Opinion
8445
March 14, 1913.
Action by J.B. Burgess against W.D. Crumpton. Defendant appealed.
Mr. J.R. Earle, for appellant.
Mr. J.W. Shelor, contra.
March 14, 1913.
Upon the call of this case for hearing in this Court, it was made to appear to the Court that after the appeal had been taken and perfected and the record printed for the hearing of the appeal, and while the appeal was pending in this Court, but before it was heard, the defendant, who was appellant, made a motion in the Circuit Court to vacate the judgment appealed from and grant a new trial on the ground of after-discovered evidence; that his motion was granted, and that the new trial was had, and resulted in a judgment for the defendant, from which no appeal has been taken. It necessarily follows that this appeal cannot be further prosecuted.
Appellant's attorney asked that the Court provide in its order dismissing the appeal that he be allowed the necessary disbursements of the appeal, but the Court cannot make such an order, because it has no original jurisdiction of the matter. This Court can only review the orders of the Circuit Courts with regard to the taxation of the costs and disbursements incident to appeals. Bradley v. Rodelsperger, 6 S.C. 290; Huff v. Watkins, 20 S.C. 477; Dilling v. Foster, 21 S.C. 334; Cooke v. Poole, 26 S.C. 321, 2 S.E. 609; Hecht v. Freisleben, 28 S.C. 181, 5 S.E. 475.
The appeal is, therefore, dismissed, without prejudice and without any intimation of opinion as to the rights of either party with regard to the costs and disbursements of the appeal.