Gainey v. Godwin, 171 N.C. 754 (1916)

March 22, 1916 · Supreme Court of North Carolina

171 N.C. 754

B. L. GAINEY et al. v. DAVID GODWIN.

(Filed 22 March, 1916.)

1. Court’s Discretion — Prosecution Bond — Appeal and Error.

Where the plaintiff has failed to file a prosecution bond in his action for land, in compliance with an order made at the preceding term of the court, it is within the sound discretion of the trial judge to permit him to file it, and in the absence of abuse of this discretion, his act in allowing it is not reviewable on appeal.

2. New Trial — Hewly Discovered Evidence.

In this case defendant’s motion for a new trial for newly discovered evidence was properly disallowed under the authority of Johnson v. R. R., 163 N. 0., 453.

ActioN to recover tract of land, tried September Term, 1915, of Sampson, before Connor'. J., -upon these issues:

1. "Was tbe plaintiff tbe owner and entitled to tbe possession of tbe lands set out in tbe complaint and described on map as tbe 16%-acre tract? Answer: “Yes.”

2. Is tbe defendant in tbe wrongful possession of any part of said tract? Answer: “Yes.”

3. What damages, if any, are tbe plaintiffs entitled to recover of tbe defendants? Answer: “$10.”

From tbe judgment rendered, defendant appealed.

Butler & Herring for plaintiffs.

John D. Kerr, Fowler, Grumpier & Gavin for defendant.

Per Curiam.

"Wben tbe case was called for trial, defendant moved that- the action he dismissed on the ground that‘plaintiffs bad failed to file a prosecution bond in compliance witb an order at former term. Plaintiff tendered a bond adjudged to be sufficient, and tbe motion was overruled. It is well settled tbat tbis is a matter witbin tbe sound discretion of tbe trial judge, and in tbe absence of evidence of gross abuse sucb discretion will not be reviewed by tbis Court.

Tbe plaintiffs made oqt a prima facie title by introducing a grant from tbe State in 1892 and connecting themselves directly witb it.

Tbe defendant offered no grant from tbe State, but claimed under tbe division of tbe lands of John Godwin in 1879 as color of title and offered evidence of possession thereunder. Defendant showed no title prior to tbat date. Tbe defendant’s title depended upon tbe location of tbe division lines and possession. Tbe matter involved is almost entirely a question of fact, and we think was submitted to tbe jury in a very clear and correct charge.

Tbe motion for a new trial upon tbe ground of newly discovered evidence is denied. Tbe affidavits in support of tbe motion fail to make out a case where a new trial will be granted. Tbe requirements are fully set out by Justice Walker in Johnson v. R. R., 163 N. C., 453.

No error.

Hoke, J., concurs in result.