Opinion
13972
January 10, 1935.
Before SHIPP, J., and STOLL, J., Darlington, March, 1930. Reversed, and remanded for a new trial.
Action commenced March 4, 1930, by the Prudential Insurance Company of America against H.R. Reynolds and others to recover on a note given on May 1, 1926, and for the foreclosure of a mortgage securing such note, in which action Heyward Reynolds filed his petition and was made a party defendant claiming that his mother, Viola E. Reynolds, owned the premises in question at the time of her death and that during his minority, without consideration and under compulsion of relationship, he was required by his father, H.R. Reynolds, to execute and deliver a deed to his father for his interest in the premises, which deed, dated December 1, 1923, Heyward Reynolds now disavowed and as to which premises he now claimed ownership of an undivided interest. The master's report recommending a foreclosure was modified so as to save to Heyward Reynolds his claimed interest in the premises, and, from an order denying plaintiff's motion for a new trial sought on the ground of after-discovered evidence, plaintiff appeals.
The substance of the showing made to support plaintiff's motion for a new trial for after-discovered evidence is as follows:
1. Affidavit by J.P. McNeill, Jr., that shortly before May 1, 1926, he, with another, inspected the premises in question for plaintiff with the view of making a loan on the security of the land; that a son of H.R. Reynolds was present and showed them the lines and gave them other information in regard to the lands of his father; that deponent did not know the name of the boy who accompanied him on the inspection, but that the young man knew that the inspection was being made with the view of a mortgage loan; that, as attorney for plaintiff and before the first reference in the cause, deponent spent considerable time to get some one to testify as to the age of Heyward Reynolds; that a number of men approached by deponent stated they did not know his age; that a reputable lawyer stated it was his opinion that Heyward Reynolds was under 21 years old when he executed the deed; and that the only reason deponent did not testify as to such inspection tour at the trial was because he was reluctant to do so when he was acting as one of plaintiff's attorneys.
2. Affidavit by W. Stokes Houck that the records of the State Highway Department showed that Heyward Reynolds, in December, 1930, obtained a driver's license on affidavit dated December 15, 1930, in which he gave his age as 28, and that in 1933 Heyward Reynolds obtained another driver's license on affidavit dated July 19, 1933, and giving his age as 31.
3. Affidavit, sworn to March 23, 1934, of J.D. McInnis stating that deponent was then 29 years old; that he went to school with Heyward Reynolds; that the latter was at least two grades more advanced than deponent during his attendance in the grammar grades, and that, before either deponent or Heyward Reynolds entered high school, deponent and Heyward Reynolds were classmates because the latter failed to be promoted while deponent was promoted; and that from deponent's close association with Heyward Reynolds and his knowledge of human nature, and in view of fact that Heyward Reynolds had been a much larger and more mature boy than deponent, deponent was of opinion that Heyward Reynolds was at least two years older than deponent.
4. Affidavit of J.P. McNeill, Jr., that the evidence on which plaintiff was seeking to obtain new trial had been discovered within the past two weeks and was not within the knowledge of deponent or any one else connected with plaintiff until about two weeks before making of such affidavit.
Counter affidavits were, in substance, as follows:
1. Affidavit of Alice Slade showing that the records of the State Highway Department did not always disclose the correct age of applicants for drivers' licenses.
2. Affidavit of Heyward Reynolds that about December, 1930, he applied to the State Highway Department for a driver's license; that at the time he was going into his twenty-eighth year, his birthday being on September 23; that he stated his age as 28 because he was in the commencement of his twenty-eighth year; that in preparing the application for license in 1933, he secured the services of a garage man who used the old driver's license and merely added three years to the age on the old license, thus showing deponent's age on the application for the new license to be 31 years; that deponent's actual age on December 15, 1930, was 27; that, on the day deponent attended a reference, he drove up to the place where the reference was being held and plaintiff's attorneys were standing in the street and saw deponent drive up with one of his witnesses in his car, and that these attorneys undoubtedly saw deponent driving his automobile and should have known that it was necessary for him to have a driver's license and that at that time the 1928 application for license referred to in support of the motion was on file in the State Highway Department.
3. Affidavit of Preston B. Thames, attorney for Heyward Reynolds, to the effect that applicants for drivers' licenses had given incorrect ages, some through inadvertence or mistake and others intentionally.
Messrs. J.P. McNeill, Jr., and W. Stokes Houck, for appellant, cite: Where contract voidable and not void: 4 McCord, 241; 3 Rich. L., 164; 2 Rich., 148: 44 Am. Dec., 283; 9 Rich. Eq., 483; 29 S.C. 414; 7 S.E., 811. New trial: 121 S.C. 159; 113 S.E., 360; 160 S.W. 343; 48 L.R.A. (N.S.), 1001; 153 Iowa, 511; 133 N.W., 883; 42 L.R.A. (N.S.), 692; Ann. Cas., 1913; 165 S.C. 355; 164 S.E., 11.
Mr. Preston B. Thames, for respondent, Heyward Reynolds, cites: Pleadings: 14 R.C.L., 246, 248; 111 Ala., 176; 56 A.S.R., 38; 76 S.C. 407; 60 S.E., 951; 79 S.C. 412; 1 Bail, 1; 27 S.C. 303; 3 S.E., 468. As to after-discovered evidence: 64 S.C. 543; 43 S.E., 25; 87 S.C. 152; 69 S.E., 97; 33 S.C. 403; 12 S.E., 8; 74 S.C. 376; 54 S.E., 658.
January 10, 1935. The opinion of the Court was delivered by
It appears to the Court, and we so hold, that Judge Stoll was in error in not granting the motion made for a new trial on after-discovered evidence. As the case will have to be tried again, we prefer not to discuss the details of the testimony so as not to hamper the parties in the subsequent conduct of the case.
It is the judgment of this Court that the order of Judge Stoll be reversed, and the case be, and the same is hereby, remanded for a new trial on the ground of after-discovered evidence.
Reversed.
MESSRS. JUSTICES STABLER, CARTER and BONHAM and MR. ACTING ASSOCIATE JUSTICE J. HENRY JOHNSON concur.