
    9761
    TATUM v. SEABOARD AIR LINE RY.
    (93 S. E. 123.)
    1. New Trial — Refusal—Discretion of Court. — The Circuit Court’s action in ’refusing defendant a new trial after a default judgment against it in a magistrate’s Court on the ground of inadvertence, .mistake, etc., rests within the Court’s discretion.
    2. Carriers — Penalty for Failure to Pay Claim — Validity.—A statutory provision, penalizing a railroad $50 for'not paying a claim within 40 days, held invalid when applied to an interstate shipment.
    3. Appeal and Error • — ■ Harmless Error —• Excluding Affidavit. — An exception that the Court excluded from the case on appeal an affidavit offered at the hearing will be overruled, where the affidavit would not change the result.
    Before DeVorE, J., Columbia,
    March, 1917.
    Modified.
    Action by T. H. Tatum agaijist the Seaboard Air Line Railway. From a Circuit Court order denying a new trial after a default judgment against it in a magistrate’s Court, the defendant appeals.
    
      Messrs. Lyles & Lyles and Jas. B. Murphy and Alfred Wallace, Jr., for appellant,
    cite: As to abuse of discretion: 106 S. C. 390; 1 Cyc. 219; 1 Corpus Juris 372; 18 S. C. 315; 47 S. C. 488. Opening judgments: Code Civ. Proc. 407; 86 S. E. 673; 82 S. C. 502; 23 Cyc. 935d and 938e; 90 S. E. 26; 85 S. E. 898. Exceptions: 27 S. C. 126. Penalty: 83 S. E. 559; 237 U. S. 597.
    
      Messrs. A. J. Bethea and Graydon & Graydon, for respondent,
    cite: 83 S. C. 547; 93 S. C. 370; 94 S. C. 112; 79 S. C. 265.
    July 16, 1917.
   The opinion of the Court was delivered by

Mr. Justice Eraser.

The case states:

“This action was commenced by service of summons and complaint on defendant, Seaboard Air Line Railway, on November 14, 1914. The complaint states that the plaintiff shipped a carload of household goods from Charlotte, N. C., to Columbia, S. C., over the road of this defendant, and that the goods were damaged to the amount of $40 while in transit; that a claim was duly filed for said damage and the same was not paid within 40 days, and plaintiff asks that judgment be given for $40 for said damage and for $50 penalty. A default judgment was taken in the magistrate’s Court on December 5, 1914, for the sum of $90 and costs. The defendant applied to Judge Wilson for an order staying execution, which was duly granted, and on the same.day served notice of intention to appeal from judgment of magistrate.”

From this order the defendant appealed.

1. The first exception complains of error in refusing a new trial on the ground of inadvertence, mistake, etc. This matter was within the discretion of the Circuit Judge, and his reasons for refusing it are sufficient.

2. The second exception complains of error in refusing a new trial on the ground that the judgment included a penalty on interstate shipment. This was error of law, and is sustained. C. W. & C. Ry. Co., v. Varnville Furniture Co., 237 U. S. 597, 35 Sup. Ct. 715, 59 L. Ed. 1137, Ann. Cas. 1916d, 333.

The third and fourth exceptions are abandoned.

3. The fifth exception complains of error in the order settling the case, in which an affidavit offered at the hearing was excluded from the case on appeal. The affidavit would make no material difference in the result, and this exception is overruled.

The judgment of this Court is that a new trial be granted, unless the respondent will remit the penalty, to wit, $50, within 10 days after notice of the filing of this opinion.  