Finley v. Cartwright

Mr. Chief Justice McIver,

dissenting in part. While concurring in the result in this case, I do not wish to- be regarded as assenting to the statement made in the opinion of Mr. Justice Jones, that “it may now be regarded as settled that this Court may reverse a finding of fact by the Circuit Court, when the appellant satisfies this Court that the preponderance of the evidence is against the finding of the Circuit Court.” To sustain this statement, the case of Bleckley v. Goodwin, 51 S. C., 363, is cited. In that case, Mr. Justice Jones, in delivering the opinion of the Court, does use this language: “In a case in equity, this Court will reverse a finding of fact by the Circuit Court when the appellant satisfies this Court that the preponderance of the evidence is against the finding of the Circuit Court.” But he adds this important language: “In this case, hozvever, the overzvhclming weight of the evidence is against the conclusion of the Circuit Court” (italics mine). So that I do not think the case cited warrants the statement under consideration. For if, as is distinctly stated in that case, the overwhelming weight of the evidence, in that case, was against the conclusion of fact reached by the Cir *206 cuit Court, then those of the members of this Court, who did not accept the view that a finding of fact by the Circuit Court in a chancery case should be reversed upon a mere preponderance of the evidence against such finding, might very well and in fact would be bound to concur in that case, as it fell within the well settled rule existing prior to the adoption of the present Constitution, as well as under the rule, changed, as it is claimed by two of the members of this Court, by the provisions of the present Constitution. The only other cases, so far as I am informed, in which the question has been considered, are The Land Mortgage Co. v. Faulkner, 45 S. C., 503, and Wagener v. Kirven, 47 S. C., 347. In the first of these ecases, which was heard and determined before Mr. Justice Jones became a member of this Court, it was held by a majority of the Court that the provisions of the present Constitution effected no change in the previously well settled rule, except in one single respect, to wit: in forbidding the Supreme Court reverse a finding of fact by the verdict of a jury on issues submitted fi> the jury, unless such verdict.had been set aside. From this conclusion Mr. Justice Gary dissented, saying that, in his opinion, “the framers of the new Constitution intended that the Supreme Court should decide the facts, in a chancery case, arising thereunder, by the preponderance of the evidence and not by the rule heretofore prevailing' — -that the Circuit decree would not be reversed unless it was without any testimony to support it, or manifestly against the weight of the evidence.” In the other case — Wagener v. Kirven— which came before this Court after Mr. Justice Jones became a member of this Court, two of the Justices adhered to the rule as laid down in Land Mortgage Co. v. Faulkner, supra, while Mr. Justice Gary again concurred in the result only, for the reasons stated by him in the Faulkner case, and Mr. Justice Jones, while concurring in the result only, took occasion to say that, in his opinion, the provisions of the present Constitution' effected a change in the pre-existing rule, whereby this Court should reverse the findings of fact by a *207 Circuit Judge in a chancery case, where the preponderance of the evidence is against such findings. It seems to me, therefore, that it would be more correct fi> say that this Court, as now.constituted, is equally divided upon the question as to what is the true rule in a case like this, rather than to say that: “it may now be regarded as settled that this Court may reverse a finding of fact by the Circuit Court (in a chancery case), when the appellant satisfies this Court that the preponderance of the evidence is against the finding of the Circuit Court.” But as, I think, it has been satisfactorily shown, in the opinion of Mr. Justice Jones, that the finding of fact by the Circuit Court, as to the value of the land conveyed by the deed sought to be set aside, is not only against the preponderance of the evidence, but is also contrary to the manifest weight of the evidence, I concur in the result as to that point, and as to the other points decided I concur generally.