The Dillon herald. [volume] (Dillon, S.C.) 1894-????, 1921-04-07
ESTABLISHED 1904
NEW TRIAL GRANT
ED IN BERRY CASE.

. A case that attracted a good deal
of attention at the time of ITS trial
was that of George Rcwen ct al
against Mrs. Eppie D. Berry, wife
OF the late ]. H. Berry. The suit was
to recover possession of a tract Of
land containing about eighty acres
which formerly belonged to William
RoweIi who died in 1852. He left a
will giving the tract in question TO
his son David Rowel for life with
remainder to hi, children. David
Rowen died in 1919, and this suit
was brought by his children, the re-
maindermen. In the meantime the
lands had been sold for debts OF Will
liam Rowen and through numerous
conveyances the lands had passed in
to the possession of Mrs. Berry. At
the time of the first trial the parties
interest had been unable to find the
Judgment roll under which the lands
had been sold in 1856 for debts of
William Roweli and the Supreme
court held in the case of Rowell
against Hyatt, which invoved the
same question, that the recitations in
the deeds were not sufficient to show
that the judgment was upon debt
0t William Rowell. After the trial
OF the Berry case and while il was
Oh appeal to the Supreme court the
Rowells brought another suit against
Erwin Coward to recover another
part of the same lands and hi: coun-
sci succeeded in finding the old judg
ment which showed conc!usively that
the land was originally sold fo.'
debts of William Rowell. Upon the
judgment being located notice of a
motion was given for new trial in
the Berry case which is still pending
in the supreme court. The matter
was continued from Dillon to be ar
eued before Judge Bowman at Or
angeburg on Thursday March the
31st. The following is copy of the
order signed by Judge Bowman:
This matter comes before me on
a motion for an order granting a
new trial on the ground of after dis
covered evidence. In
Sans VS. Hoover, 33 S. C. 4O3, cited
with approval in Mills VS. A. c. L.
Railroad Company, 81 S. c. 157, the
Supreme court has stated three con-
ditions which must be made to ap-
pear to justify the granting of mo-
tion for a new trial upon the ground
of after discovered evidence, (D
the proposed new evidence was dis
covered after the former trial, CD
that it could not by the use of due
diligence have been discovered in
time to be offered at the former trial
and CD that it is material; and in the
Mills case, the court further states
that, even when these three condi-
tions appear, it does not necessarily
follow that the judge should exer.
else his discretion and grant a new
trial, because it may appear, never
theless, that the ends of justice would
not be thereby the better promoted. In
the present case, it clearly appears tC
me that the evidence on which this
motion is based was discovered after
the trial, that due diligence was en-
: ployed to find it before the former
trial, that it is material and that the
ends of jusice Will be the better
promoted by the granting of a new
trial. Having reached these conclu.
sions, it follows that the motion fol
a new trial should be granted, and
it is so ordered
This order does not affect the ap-
peal to the supreme court, but what
ever disposition be made of the ap-
peal the case stands in Dillon county
for new trial.