Davenport v. Terrell, 103 N.C. 53 (1889)

Feb. 1889 · Supreme Court of North Carolina
103 N.C. 53


New Trial — Judicial Discretion.

Granting a new trial, on the ground that the verdict is against the weight of the evideuce, is a matter within the discretion of the Judge below, and not reviewable, unless it appear that the Judge was influenced in the exercise of such power by an erroneous view of the law.

This was a civil action, tried on appeal from the Court of a Justice of the Peace, at the April Term, 1888, of the Superior Court of Wake County, before Shipp, J.

The material facts are stated in the opinion.

Mr. W. J. Peele, for the plaintiffs.

Mr. G. M. Busbee, for the defendant.

Avery, J.

The record contains but one exception. After verdict for the plaintiffs, the defendant’s counsel moved the Court for a new trial, because the verdict was against the weight of evidence. The motion was argued by counsel. During the discussion the Court (Judge) remarked that, if he had been on the jury, he would have found differently, but that it was a small matter, or that there was a small amount involved, and the case ought not to be tried again. The motion was not then disposed of, but afterwards the Court, upon consideration, and in the exercise of its discretion, discharged the rule for a new trial. Appeal by defendant.

On the argument in this Court, counsel raised no question as to the discretionary power of the Judge below to grant or refuse a motion of this kind.

We cite only one late case re-afffrming the settled principle—Redmond v. Stepp, 100 N. C., 212. But when it appears *54that the Judge was influenced in the exercise of such power by an erroneous view of the law, this ruling can be reviewed, and ought to be reversed on appeal in this Court. Vest v. Cooper, 68 N. C., 131. In the case before us, the rule for a new trial was discharged by the Court “ upon consideration and in the exercise of its discretion,” not at the time when the remark which is set forth in the assignment of error was made, but afterwards. We must accept the statement in the record, and as the motion was refused after deliberate consideration, and in the exercise of an admitted power, it is useless to speculate, as to whether there would have been error for which a new trial might be awarded, if it clearly appeared that his Honor was influenced by the consideration that only a small amount was involved in the controversy settled by the verdict.

No error. ' Affirmed. •