Thomas v. . Myers , 87 N.C. 31 ( 1882 )

The numerous adjudications heretofore made, that this court will not revise and reverse the exercise of a power committed to the discretion of the judge of the superior court, would seem to render superfluous any discussion or reference to precedents, and the granting or refusing a motion for a new trial, not involving the determination of a question of law, it is well settled, belongs to this class and is not subject to review on appeal.

"The new trials which have been awarded here," is the language of HENDERSON, J., in Bank v. Hunter, 12 N.C. 100, "were in cases where there was some error which infected the verdict, such as the admission or rejection of evidence, which ought to have been received or rejected, or some misdirection of the judge to the jury, on questions of law arising on the trial, or the like."

In answer to an argument for the revisal of a judgment, on the ground ofsurprise, the same judge declares that "it is matter addressed to the discretion of the judge below, over which we have no control." Lindsey v.Lee, Ib., 464.

SO GASTON, J., declares in State v. Miller, 18 N.C. 500: "There is a marked distinction between the awarding of a new venire because of the verdict being thus declared bad, and the setting of a verdict aside and granting of a new trial. The former must be for matters apparent only on the record, and is of right; the other may be for matters not appearing on the record, and is addressed to the discretion of the court. The former is matter of error, and must be noticed by the appellate court; the latter is ordinarily not matter of error, nor elsewhere examinable."

The distinction is noted in Moore v. Edmiston, 70 N.C. 471, and other cases.

It is true an appeal lies under C. C. P., Sec. 299, from the (34) granting or refusing a new trial and the ruling will be revised, but it is allowed only when the action of the court is one "involving a matter of law and legal inference," and not the exercise of a discretionary power.

In accordance with this section, this court in Bryan v. Heck,67 N.C. 322, entertained an appeal of the plaintiff from an order setting aside the verdict and vacating the judgment, on the ground of the erroneous ruling of the judge that the plaintiff was only entitled to nominal damages, while the jury had assessed substantial damages, such as he was entitled to recover, and the order was reversed. See alsoQuincey v. Perkins, 76 N.C. 295; Long v. Gooch, 86 N.C. 709.

The court in the present case, while reporting the evidence, declares the case to be one of surprise, injurious to the defendants, and awards a new trial as, in its judgment, under the circumstances, due to the defendants. It will not therefore be disturbed, and the appeal must be dismissed.

PER CURIAM Appeal dismissed.

Cited: Carson v. Dellinger, 90 N.C. 229; Puffer v. Lucas, 107 N.C. 325;Edwards v. Phifer, 120 N.C. 406; Wood v. R. R., 313 N.C. 48; Johnsonv. Reformers, 135 N.C. 387; Oil Co. v. Grocery Co., 136 N.C. 356;Abernethy v. Yount, 138 N.C. 347; Goodman v. Goodman, 201 N.C. 810.