While the statute, section 412 of The Code (4), provides that motions to set aside verdicts upon the ground of excessive damages can only be heard at the same term at which the- trial is had, it has never before been seriously questioned that counsel might agree that *233said motion be heard and determined at’ a subsequent time. This course, with regard to many matters required to be done in term, is daily taken in the practice; indeed it frequently occurs that on account of the press of business before the Court, the length of-the term being limited, 'it is impracticable for the Judge or the counsel to give the necessary attention to motions .of this kind which their importance demands. While the sections of The Code are equally imperative with regard to the time for perfecting appeals, as a matter of fact the time is generally regulated by agreement of counsel. In this case the judgment was rendered at August Term, 1893, and appeal noted, notice waived and bond fixed upon the record. And then was entered the agreement of counsel as set out above, that the same Judge who tried the case might hear a motion to set aside the finding and verdict upon the second issue at the next term. And at the next term his Honor, upon consideration, did set aside the verdict upon the second issue upon the ground that in his opinion the damages assessed were excessive.
It will appear by the record that after the adjournment of the August Term, and while the agreement was pending, the defendant’s counsel served a case on appeal upon counsel for plaintiff, which case was accepted by said counsel, and the transcript was sent up to this Court by the Clerk. At December Term, when the motion to set aside wras made and heard according to agreement of record,- plaintiff objected-that the case was now in the Supreme Court. '
It can readily be seen that the appeal was perfected-out of abundant caution, but that it was prematurely sent up to this Court, pending the motion to set aside, the time for the hearing of which motion had been extended by conseht. The setting aside of the verdict was a matter of discretion. Hicks v. Gooch, 93 N. C., 112; Hilliard v. Oram. 106 N. C., 467. Affirmed.