Summary
In Dantzler v. Funderburg, 129 S.C. 79; 123 S.E., 788, the Court again recognizes that an order granting a new trial upon a matter of law is appealable.
Summary of this case from Walker et al. v. Quinn et alOpinion
11546
July 16, 1924.
Before SEASE, J., Orangeburg, October, 1923. Affirmed.
Action by Georganna Dantzler, as Administratrix of the Estate of A.D. Dantzler, and in her own right and others, against Nero Funderburg. From an order granting defendant's motion for new trial, plaintiffs appeal.
Mr. Jacob Moorer, for appellant, cites: Order granting new trial erroneous: 108 S.C. 486. Possession follows title: 102 S.C. 398; 123 S.C. 69. Deed absolute on its face is what it purports to be: 64 S.C. 177. Courts will not lend aid to person attempting to evade payment of taxes: Cooley Taxation, page 299; 64 S.C. 35. Failure to pay taxes some evidence that no claim was made to land: 123 S.C. 84.
Mr. George K. Rich for respondent.
July 16, 1924. The opinion of the Court was delivered by
In action for the recovery of real estate, the jury rendered a verdict for the plaintiffs. The defendants moved for a new trial. The Circuit Judge granted the motion, and "ordered that a new trial be, and the same is hereby, granted upon the entire record in the case."
The plaintiffs have appealed upon the grounds, substantially, that it was error to grant the new trial "upon the entire record in the case" when the motion for new trial was not based upon that ground, but was based upon specific allegations of error of law in the admission of testimony and in the Court's charge to the jury, which allegations of error were wholly without merit. The Circuit Judge having ascribed his action on the motion to his view or opinion of the entire trial record, we cannot assume that the ruling was predicated upon or controlled by error of law in a sense and to an extent that would subject it to review in this Court. The granting of the new trial upon the entire record instead of upon the specific grounds assigned by defendants' counsel was within the sound discretion of the trial Judge, and the case for appeal discloses no such abuse of discretion as would warrant a reversal.
It is accordingly adjudged that the order of the Circuit Court be, and is hereby, affirmed.
MESSRS. JUSTICES WATTS, FRASER and COTHRAN concur.
MR. CHIEF JUSTICE GARY did not participate.