Brown v. Town of Hillsboro, 185 N.C. 368 (1923)

April 11, 1923 · Supreme Court of North Carolina
185 N.C. 368


(Filed 11 April, 1923.)

1.Appeal and Error — Objections and Exceptions — Record.

Where exceptions set out in appellant’s summary thereof do not conform to the exceptions shown in the statement of the case on appeal settled by the judge, the latter will prevail.

2. Pleadings — Courts—Discretion.

The trial judge has the discretionary power conferred on him by statute to allow the defendant to file an answer to the amended complaint during the term, and his action will not be reviewed on appeal when an abuse of this discretion has not been shown. C. S., 536.

3. Evidence-Handwriting — Witnesses—Nonexperts.

One who is acquainted with the handwriting of the person supposed to have written the instrument in question from often having seen him *369write, or from having acquired competent knowledge of Ms handwriting in some other approved manner, is competent, though a nonexpert in handwriting, to testify as to its genuineness or falsity.

4. Evidence — Municipal Corporations — Cities and Towns — Entries— Records.

The full entry of the minutes of the board of town commissioners relating to an election called to determine the question of taxation and issuing bonds for improvements, etc., is required to be introduced upon the trial, in order that the court and jury may understand what had been done at the meeting, in passing upon the validity of the corporate acts in question, and the sufficiency of the evidence. Bailey v. Hassell, 184 N. C., 450, cited and approved.

5. Appeal and Error — Objections and Exceptions — Questions and Answers — Evidence.

Appellant must except to a question asked a witness upon the trial at the time the question was asked, or he will be deemed to have waived his right to have his exception to the admission of the evidence considered on appeal.

6. Evidence — Hearsay—Irrelevant.

Evidence on the trial of an action is properly excluded by the court when it is hearsay or has no relation to the issue.

7. Evidence — Municipal Corporations — Cities and Towns — Bocal Improvements — Petition.

Where a petition for local improvements has been made to the town commissioners, the question as to whether a certain person has signed is best evidenced by the petition itself; and where it appears to have been signed for a mercantile company by its business manager, it is competent for the witness to show this authority to sign for the company, or the subsequent ratification of his act.

8. Evidence — Irrelevant—Answers to Questions — Motions to Strike Out —Courts—Discretion.

Irrelevant testimony, unresponsive to a question asked by a party of his witness, should be asked to be stricken out by the party at the time, if objected to; and where he has acquiesced by his delay, the matter is within the discretionary power of .the trial judge.

9. Partnership — Municipal Corporations — Cities and Towns — Petition for Bocal Improvements — Signatures—Scope of Partnership Powers.

A partner, acting within the scope of the partnership, may sign his firm’s name to a petition to the town commissioners for local improvements to be made in the street upon which the firm’s lands abut.

10.Municipal Corporations — Cities and Towns — Bocal Improvements— Petition — Bonds.

Held,, it is sufficient under the facts of this case that a petition signed by the owners of land abutting upon a street sought to be improved be presented to the proper town authorities, at any time before the issuance of the bonds contemplated.

*37011. Trials — Prejudice—Courts—Duty of Judge.

It is proper and commendable that the judge presiding at the trial, acting with fairness to both parties, prevent prejudice from entering into the jury box on the trial of an action, and held, in this case, it was proper for him to instruct the jury that they must find the facts from the evidence, and not from what the court or counsel may have said.

12. Municipal Corporations — Taxation—Bonds—Value of Property — Evidence — Tax Lists.

Where the value of the property within a town is relevant to the inquiry as to its constitutional authority to issue municipal bonds, such value „as last fixed by the constituted authorities is that required by the statute, and that of the preceding year is irrelevant.

13. Evidence — Municipal Corporations — Cities and Towns — Property V aluation — Statutes.

Exception to the submission of appellant’s issues that do not arise from the pleadings is untenable on appeal; and held, those submitted in this case were clearly sufficient and comprehensive to present every material question in controversy, and not subject to valid exception.

14. Appeal and Error — Objections and Exceptions — Record—Appellant’s Summary of Exceptions.

Exceptions to the instructions of ’the court should be specific and stated separately in articles numbered; and it is preferable that no exception contain more than one proposition; and additional exceptions to those appearing of record and afterwards inserted in the appellant’s summary of exceptions will not be considered on appeal.

15. Municipal Corporations — Cities and Towns — Statutes—Implied Authority — “Borrow Money” — Bonds—Notes.

The borrowing of money by an incorporated city or town for street paving or improvements is for a necessary expense, and does not fall within the provisions of Article VII, section 7, of the State Constitution requiring that in older for the municipality to pledge its faith or lend its credit, the proposition must have the approval of a majority of the qualified voters.

16. Municipal Corporations — Cities and Towns — Local Improvements— Remedy of Owner Assessed — Statutes.

The owner of land abutting on a street the municipality proposes to improve has his remedy in objecting to the local assessment on his property because of the insufficiency of the petition, C. S., 2714, and he may not enjoin the issuance of bonds for this necessary expense on that ground when he has failed to pursue his statutory remedy.

17. Municipal Corporations — Cities and Towns — Local Improvements— Bonds — Necessary Expenses — Apportionment of Funds — Statutes.

Where a town has issued bonds for general street improvements under legislative authority, and includes the amount required -for local improvements by assessment of owners of lands abutting a particular street improved, it may charge off from the proceeds of the sale of the bonds the estimated amount to be realized by the special assessments under the provisions of a recent statute.

*37118. Municipal Corporations — Cities and Towns — Indebtedness—Statutes— Legislative Control.

Municipalities, in incurring obligations for the improvements of their streets, etc., are largely subject to legislative control, and must observe the legislative requirements under which they act.

19. Statutes — Curative Statutes — Vested Bights.

When the Legislature has authority to enact a statute, but it is invalid for irregularities in its passage, the defects may be cured and the act validated by proper legislation when there is no question of impairing vested rights.

20. Municipal Corporations — Cities and Towns — Taxation — Property Value — Limitation—Constitutional Law — Instructions.

Held, under the evidence in this suit to enjoin a town from issuing its bonds for street improvements, necessaries under the provisions of Article VII, section 7, State Constitution, the court properly charged the jury as to the constitutional limitation of 8 per cent upon property valuation, and that the jury should only find the facts in the case, under the instructions of law from the judge, and not concern themselves with the discretionary matters left by law to the municipal authorities to determine.

21. New Trials — Motions—Newly Discovered Evidence — Burden of Proof.

The applicant for a new trial for newly discovered evidence has the burden of rebutting the presumption that the verdict is correct, and of showing that there has not been a lack of due diligence on his part; and as a prerequisite to the granting of his motion it must appear by affidavit that the witness will give the newly discovered evidence; that it is probably true; that it is competent and relevant; that due diligence has been used by him; that the testimony is not merely cumulative; that it does not tend only to contradict a former witness or to impeach or discredit him; and that on another trial a different result will probably be reached and the right prevail.

Appeal by plaintiff from Connor, J., at December Term, 1922, of Osange.

C. D. Turner for plaintiff.

A. H. Graham and Gattis & Gattis for defendant.

Valicee, J.

In view of tbe discrepancies between tbe alleged statement of facts in appellant’s brief and tbe summary of exceptions, and tbe exceptions in tbe statement of case on appeal, as settled by tbe judge, we deem it proper to make tbe following preliminary explanation :

The governing body of the town of. Hillsboro, on 28 August, 1922, passed the bond ordinance in question, which was to be submitted to the qualified voters of the town at an election to be held 10 October, 1922. Before said election was held, plaintiff brought this action to restrain the bolding of said election. At the bearing of the matter at chambers, *372plaintiff abandoned bis request for an order restraining the bolding of the election, and was granted permission to file an amended complaint, and the election, for wbicb a new registration of qualified voters was bad, totalling 399 names, was duly beld on 10 October, and at tbis election 290 votes were cast in favor of said bond ordinance and 7 votes were cast against it. Plaintiff filed an amended complaint, seeking to prevent the proposed issue of bonds by the town, and to test the validity of a contemplated assessment for local improvements. No bonds bave been issued nor bas any assessment been made. After the election, on 28 November, 1922, the governing body of the town considered certain petitions filed by property owners asking for local improvements amounting approximately to $15,000, as shown by the report of the engineer, in accordance witb Laws 1915, cb. 56, and amendments thereto. After careful consideration of these petitions, the board authorized the issuance of bonds in the sum of $60,000, wbicb amount was to cover the street improvements, contemplated by the town, and the local improvements petitioned for.

Inasmuch as tbe exceptions contained in appellant’s summary of exceptions do not conform to the exceptions shown in tbe statement of tbe case settled by tbe judge, we will bave to consider only tbe exceptions as found in tbe statement of tbe ease on appeal, and we will take up tbe exceptions in tbe order appearing in tbe record.

Exception number one: Tbis matter is in the discretion of the trial court. the motion was based upon defendant’s failure to filfe an answer to -the amended complaint, and to the leave granted by the court to file an answer during the term. A bolding based on Revisal of 1905, sec. 515, now C. S., 536, reads: “the exercise of the discretion of the trial judge in permitting an extension of -time to file pleadings is not reviewable on appeal.” Church v. Church, 158 N. C., 564, beadnote 2, there being no gross abuse of the discretion in tbis instance.

Exception number two : Tbe genuineness or falsity of disputed band-writing may be proven by testimony of a witness, not an expert, who is acquainted witb tbe bandwriting of tbe person supposed to bave written it, either because be bad often seen him write, or who bad acquired competent knowledge of bis bandwriting in some other approved manner. Abbott’s Proof of Facts (4 ed.), p. 579, par. 4, and cases cited.

Exception number three: The minutes of the board having been introduced in evidence by plaintiff, the court and jury were entitled to bear the full entry in regard to the action taken by the board in the matter. One reason is because without knowledge of the entry the court or jury could not understand what was done. The subject of the validity of corporate acts, and the evidence tending to show it, was considered in Bailey v. Hassell, 184 N. C., 450.

*373Exception number four: An objection to tbe reception of evidence is waived if not taken in apt time. Johnson v. Allen, 100 N. C., 135; 26 R. C. L., pp. 1045-46. It is tbe general rule that an objection to a question asked a witness must be interposed wben tbe question is asked and before tbe answer, or tbe right to bave tbe testimony excluded is waived. Dobson v. R. R., 132 N. C., 900. Even if objection bad been made in apt time, this evidence was competent for tbe reasons set forth above under exception number three.

Exception number five: Tbe evidence proposed to be introduced was incompetent because it was hearsay, and bad no bearing on tbe issue. Lockhart on Evidence, ch. X, p. 138; King v. Bynum, 137 N. C., 491. We bave cited authorities for this proposition, but it would seem to be unnecessary, as tbe principle is elementary.

Exception number six: the question asked was incompetent because the petition itself shows that Mrs. Waller bad not signed it, and the petition was the best evidence.

Exceptions numbers seven and eight: Tbe petition being signed “Merchants Supply Company, by J. H. Freeland, Business Manager,” it was competent for tbe witness, as president of tbe corporation, to explain tbe authority for tbe signature, which she did by testifying that she instructed him to sign it for tbe corporation, showing that she not only authorized it, but ratified tbe action of her agent, who was her brother, in signing tbe petition.

Exceptions numbers nine and ten: Tbe evidence here objected to was elicited by plaintiff from bis own witness, in response to bis own questions, and there was no objection by plaintiff until tbe entire testimony, consisting of several sentences, was in. Plaintiff should bave moved to strike out tbe testimony of tbe witness, which be failed to do. It was in tbe discretion of tbe court whether it would strike out tbe testimony, where objection to it was apparently acquiesced in, and tbe objection came too late.

Furthermore, tbe evidence of tbe witness disclosed that be was, and bad been for many years, acting as agent for tbe heirs of James Webb, Jr., Cox and Browne Webb, and of bis mother, Mrs. J. C. Webb; that be transacted all their business with reference to tbe property in question, and that bis action in so doing bad been endorsed, and ratified, and bis agency recognized by them; and, furthermore, that it bad been confirmed by acquiescence, and bis signature to tbe petitions in question, not having been objected to by them, but seemingly recognized and ratified, neither plaintiff nor any other person should be beard to question them.

Exception number eleven: Tbe witness, as a member of tbe firm of H. W. and J. 0. Webb, a partnership, bad a right to testify that he signed tbe petition for tbe firm, in explanation of this act of signing tbe *374petition. It appears from the testimony of the witness that this partner signs practically all papers for the firm, in the course of the partnership business, and the other member of the firm not questioning his right to sign it in this ease, though called upon to do so, no one else can question it. According to the evidence of the witness, he owned no property as an individual, but only as a member of the partnership.

Exception number twelve: The evidence sought to be admitted was incompetent, irrelevant, and immaterial, and the error, if any, was cured later by the testimony of the witness Arrasmith that he was not present. Appellant makes no contention that the chairman of the board of county commissioners signed the petition before 28 August, 1922, as it was not necessary for the petition of property owners, requesting the making of local improvements, to be filed at the time of the passage of the ordinance, but it is sufficient for the petitions to be filed at any time prior to the issuance of the bonds. This is clearly set forth in Laws 1921, Extra Session, eh. 106, sec. 2941.

Exception number thirteen: A controversy having arisen between counsel over the health of the town treasurer, the remarks of the court were addressed to statements by counsel on that point. It was manifestly proper for the court to tell the jury that they must find the facts from the evidence and not from what counsel or the court had said. S. v. Foster, 172 N. C., at p. 963. Considering only what the record discloses, this controversy, so far as we can judge of it, hardly reached the proportions of even a “tempest in a teapot,” and though there is not a full statement of it, and some things appear in the briefs which are not clearly stated in the record, we cannot declare the remark of the judge to be error, for it impresses us as one deserving our commendation. A judge is not a mere moderator or a mere figurehead, but is an essential and important part of the court, if not the most important, and should take the lead and direct the course of proceedings, where necessary to orderly procedure in the court. The action of the judge worked no harm to the.plaintiff, and it must be said that he does not occupy (figuratively speaking) a position like unto that of a “bump on a log,” but is an active agency and expected to assume and retain a commanding position, to keep all things well in hand, as the learned judge very properly and promptly did in this case, thereby preventing prejudice to either of the parties, and this is what we not only approve, but commend.

Exceptions numbers fourteen and fifteen: The tax books for the year 1921 could throw no light upon the amount of taxable property assessed for taxation for the year 1922, which latter is the valuation required .by Laws 1921, Extra Session, ch. 106, sec. 2943, subsec. 1 (5) (d), which provides that “The assessed valuation of property, as last fixed for municipal taxation,” shall govern, which in this case was the assessed valuation as fixed 1 May, 1922.

*375Exception number sixteen: This, if error, is harmless, as all computations were based upon the assessed valuation of taxable property as of 28 August, 1922.

Exception number sixteen and a half: We refer to tbe discussion under exception number one of this opinion, without repetition, as it applies to this exception.

Exception number seventeen: The issues tendered by plaintiff are not such as naturally arose upon the pleadings. C. S., 584; Potato Co. v. Jeanette, 174 N. C., par. 4, p. 240. Further, the statement of case shows no exception was taken to the issues submitted, and they were clearly sufficient and comprehensive to present every material question in controversy. Ratliff v. Ratliff, 131 N. C., 425; Warehouse Co. v. Ozment, 132 N. C., 839.

Exceptions numbers eighteen and nineteen: The statement of the case shows that plaintiff noted two general exceptions .to the charge of the court. In his summary of exceptions, he has inserted other exceptions and points out certain alleged errors, but this comes too late, and is not a compliance with the rule. Exceptions to the charge must be specific and not too general. S. v. Johnson, 161 N. C., 264; Jackson v. Williams, 152 N. C., 203, Exceptions must be stated separately, in articles numbered, and it is better that no exception should contain more than one proposition. Gwaltney v. Assurance Society, 132 N. C., 925.

In appellant’s brief reference is made to the case of Tarboro v. Forbes, ante, 59. That case is distinguished from the present one in that the Tarboro case, supra, was brought to enforce an assessment made on property for local improvements. This ease is to test the validity of a bond ordinance. In the Tarboro case, supra, the submitted controversy and agreed facts showed that the town owned as a common the entire length of one side of the improvement district, which constituted about one-half of the front foot line, and that the town had not signed the petition, and as all the owners on the other side of the street had not signed the petition, it was manifest from the record, on its face, that the requisite number of owners and of lineal frontage had not signed, but here the record shows that a majority of the owners, having the larger part of the lineal feet on the front line, have signed, and this fact was so found by the jury.

A municipal corporation has authority to issue bonds for necessary expenses without the sanction of an election. Nevertheless, in this case an election was held, according to law, as now appears, and the bond ordinance was ratified by a vote of 297 to 7 out of a registered vote of 399. However, it is provided that the net debt of the municipality must not exceed 8 per cent of the taxable' property therein.

This action is brought to challenge the right of the municipality to issue bonds for necessary expenses, and, in the trial, the validity and *376sufficiency of the petitions for local improvements were attacked. If the plaintiff desires to attack the assessments wben levied against bis property, the statute gives bim a remedy. C. S., 2714. Eurthermore, it is immaterial in tbis action whether the petitioners are sufficient or not. the municipality may enact an ordinance authorizing the issuance of bonds for which local improvements are secured; provided the bonds are not issued until a majority of owners representing a majority of lineal front feet of property have signed the petitions. Laws 1921, Extra Session, ch. 106, sec. 2941.

If the petitions did not have a sufficient number of signatures, tbe town could issue bonds for necessary expenses, especially wben sanctioned by popular vote, unless tbe issue should be in excess of tbe prescribed limitation. Tbe statute of 1921 (Extra Session), cb. 106, sec. 2943 b (4), permits a municipality to charge off from its gross debt, among other things, amounts to be levied as special assessments for local improvements. Therefore, if at any time before tbe bonds are issued a petition for local improvements containing a sufficient number of authorized signatures to bind tbe property owners in tbe improvement district be filed and certified, tbe town may charge off tbe estimated amount to be realized by said special assessments, as provided by said statute, and in tbis case wben tbis shall have been done, according to all tbe evidence, tbe net debt will be within tbe 8 per cent limitation.

Consequently, it would appear that a determination of tbe validity of tbe bond issue, or of tbe assessment, cannot be bad until tbe town proceeds to issue its bonds. Then tbe plaintiff may bring bis action to test tbe validity of tbe bond issue or of tbe assessment, as be sees fit. Plaintiff’s action is now premature.

Appellee calls the attention of the Court to House Bill No. 347, Senate Bill No. 332, entitled “An act to ratify bonds of the town of Hillsboro,” enacted by the Legislature of 1923, and ratified 12 February, 1923, a certified copy of which act has been filed in tbis action with the clerk of the court. Kinston v. Trust Co., 169 N. C., 207; Reid v. R. R., 162 N. C., 355-358; Supervisors v. Brown, 112 U. S., 261-271.

The Kinston case, supra, decided:

“1. A legislative authorization to a municipality to issue bonds for paving and generally improving its streets; to enlarge and extend its waterworks system; to enlarge and better equip its electric light plant; to install an electric fire-alarm system, and to erect municipal buildings, is for necessary expenses, and not subject to tbe restrictions of our Constitution, Art. VII, sec. 7, requiring that tbe question of tbe issuance of tbe bonds be submitted to tbe vote of tbe people.
“2. Municipalities are very largely subject to legislative control as to tbe issuance of bonds and other matters governmental in character, and *377they must observe tbe statutory requirements, charter ox otherwise, under which they act, it remaining in the power of the Legislature to remove by subsequent legislation irregularities by reason of the violation or nonobservance of requirements upon the municipality made in a previous act, when no vested rights have supervened and no mandate of the Constitution has thereby been violated. Jones v. Comrs., 137 N. C., 579.
“3. Where a bond issue for necessary expenses has been submitted to and approved by the voters of a city, according to a statutory requirement, but it appears that it is in violation of the city’s charter requiring that no ordinance or resolution respecting such matters be finally passed on the date of its introduction, it is within the authority of a subsequent Legislature to validate the issuance of the bonds by direct legislation, not requiring the proposition to be again submitted to the voters; nor is objection material that the validating act refers to bonds already delivered when in fact they had only been prepared, and were refused by the purchaser.”

The Court, in its opinion, further observed generally that under our decisions, and on the facts in evidence, the bonds are for necessary expenses, and are not therefore, subject to the constitutional restrictions on municipalities as to incurring indebtedness, contained in Article VII, section 7, of the Constitution. Murphy v. Webb; 156 N. C., 402; Comrs. v. Webb, 148 N. C., 120; Fawcett v. Mount Airy, 134 N. C., 125; Black v. Comrs., 129 N. C., 121; Vaughn v. Comrs., 117 N. C., 434. The municipalities, however, in matters of'this character, are very largely subject to legislative control, and as-to incurring indebtedness and other questions, governmental in character, they must observe the statutory requirements under which they act. Allison v. Williams, 152 N. C., 147; Hendersonville v. Jordan, 150 N. C., 35; Robinson v. Goldsboro, 135 N. C., 382; Wadsworth v. Concord, 133 N. C., 587. This last position, however, is subject to the principle, very generally recognized, that when defects and irregularities are by reason of the violation or nonobservance of statutory provisions, and unless vested rights have supervened, the objections may be removed and the measure validated by proper legislative action. Reid v. R. R., 162 N. C., 355-358; Grenada County Supervisors v. Brown, 112 U. S., 261, 271; Illinois v. Ill. Cen. R. R., 33 Fed., 721-771; Schench v. Jeffersonville, 152 Ind., 204-217.

In Reid’s case, supra, the Court said“It is well recognized that, so far as the public is concerned and when not interfering with vested rights, a Legislature may ratify and make valid measures which it might have originally authorized.” In Board Supervisors, etc., v. Brown, supra, it was held: “That a municipal subscription to the stock of a railroad company, or in aid of the construction of a road, made without authority previously conferred, may be confirmed and legalized by subse*378quent legislative enactment, when legislation of that character is not prohibited by the Constitution, and when that which was done would have been legal had it been done under legislative sanction previously given,” and in Schenck’s case, suprd, “In the absence of constitutional restriction, the Legislature has the right to legalize the bonds of a city so long as vested rights have not intervened.” Anderson v. Wilkins, 142 N. C., 154.

We have closely and carefully examined the assignments of error singly and collectively, and find that the most of them, say the first twenty-two in number, are to matters clearly competent in form and strictly relevant to the issues in the case, and have been in one way or another so frequently considered and decided by this Court, that we deem any further discussion of them, or any beyond that we have devoted to them, as being unnecessary. No new principle is involved, and we would add nothing at all novel to our stock of precedents, but simply reiterate what we have heretofore so often held.

This brings us to the charge, which appears to cover the case completely, and to be without flaw. The computation as to the town’s indebtedness was simple and the correct result easily ascertained. The jury decided that the provision as to the limitation of the bond issue to 8 per cent of the total assessed valuation of taxable property has not been transgressed. The court properly instructed the jury that the judge and jury had nothing to do with the questions as to whether it is wise to incur the indebtedness, or issue the bonds for public improvements, or as to whether the method suggested, or proposed, by the local authorities-for laying out and constructing the roads or streets is the best one or not, and that no duty or responsibility for the same rested upon the court or jury, but that they were confined simply, that is, the jury, to finding the facts, and the judge to declaring the law arising thereon. In all respects,, upon this phase of the ease, the judge correctly and fully instructed the. jury — without question, and this also is true as to the assessments, and what we have just said applies most assuredly to the question as to' whether the roads or streets and sidewalks should be hard-surfaced, laid in cement, asphalt, or concrete, and of what width, are manifestly matters left to the judgment and sound discretion of the local authorities' to whom the law has committed or confided the same. It having been determined what is 8 per cent of the taxable value of town property, after proper deductions were made for that purpose, and that all necessary and required preliminaries had been observed, in the way of a petition, and so forth, the jury properly returned the following verdict:

“1. Is the aggregate amount of the bond issue, less the deduction allowed by law, in excess of 8 per cent of the total assessed valuation of the property of the town of Hillsboro for the year 1922? Answer.No.’
*379“2. "Were tbe petitions filed for'local improvements on King and Cburton streets signed by a majority of tbe persons owning property witbin tbe proposed improvement district, as required by tbe statute? Answer: ‘Yes.’ ”

Tbe judgment of tbe court logically followed tbe verdict, as properly interpreted and understood in tbe light of tbe evidence and tbe charge of tbe court.'

Mr. Chester Turner presented bis case very strongly for tbe plaintiff, and as convincingly as the facts of tbe case permitted, but when all things are considered, tbe correctness of tbe rulings by Judge Connor, who presided at tbe trial, and of all tbe other proceedings, especially when, as we repeat, they are taken in connection with tbe statute curing defects, if any, and validating tbe election, and so forth, we do not now see bow we can do otherwise than overrule all exceptions and affirm tbe judgment of tbe court, which we now do.

But as tbe Legislature has cured any defects or irregularities in tbe proceedings, including those affecting the election, and its preliminaries, we cannot now see, with this fact alone before us,' any ground upon which we can interfere and grant relief to tbe appellant.

As suggested in tbe defendant’s brief, and resting what we will now state solely upon it, tbe plaintiff may, perhaps, further pursue bis remedy, if be has any, hereafter, but as tbe record now stands, we can find no reason sufficient for a reversal or for a modification of tbe judgment.

We therefore declare that we find no error in tbe record, and it will be so certified to tbe lower court according to tbe statute.

No error.

"Walker, J.

Since the above case was argued before us, the plaintiff has moved for a new trial, upon the ground of newly discovered evidence. We said, in Johnson v. R. R., 163 N. C., 431, at p. 453, that “applications of this kind, as we have held, should be carefully scrutinized and cautiously examined, and the burden is upon the applicant to rebut the presumption that the verdict is correct, and that there has been a lack of due diligence. 14 A. & E., 790. We require, as prerequisite to the granting of such motions, that it shall appear by the affidavit: (1) That the witness will give the newly discovered evidence; (2) that it is probably true; (3) that it is competent, material, and relevant; (4) that due diligence has been used and the means employed, or that there has been no laches in procuring the testimony at the trial; (5) that it is not merely cumulative; (6) that it does not tend only to contradict a former witness or to impeach or discredit him; (7) that it is of such a nature as to show that on another trial a different result will probably be reached, *380and that the right will prevail,” citing Turner v. Davis, 132 N. C., 187; S. v. Starnes, 97 N. C., 423; Brown v. Mitchell, 102 N. C., 347; S. v. DeGraff, 113 N. C., 688; Shehan v. Malone, 72 N. C., 59; Mottu v. Davis, 153 N. C., 160; Aden v. Doub, 146 N. C., 10.

Upon careful consideration of the application in tbis case for a new trial, we are of the opinion that the plaintiff bas not brought the same within the rule repeatedly laid down by tbis Court in the Johnson case, supra, and in other decisions, and that there are several respects in which be bas failed to do so, not necessary now to be enumerated. We could not well grant bis application for a new trial upon the showing made by him without seriously impairing the integrity and strength of the said rule, which bas been consistently maintained for many years. We have heretofore refused numerous applications which more nearly comply with our rule than does the one which is now in question, but we may further say that we are not induced to believe, in the face of the statute validating the election held to ascertain the will of the people in regard to the issuing of bonds and the making of assessments that the plaintiff bas shown bis ability to reverse the result in tbis case, or even to modify the same.

Tbe motion, therefore, for a new trial upon tbe grounds stated in tbe papers must be denied.

Motion denied.