The case was first tried at the February term and resulted in a verdict for the defendants. "Without assigning any reason at the time, the court of its own motion set aside the verdict, and the defendants excepted and appealed. The case on appeal was duly served, and there was no exception or eounterstatement. At the March term the case was again called for trial, and the defendants objected to proceeding on the ground that their appeal was pending; whereupon his Honor held that the appeal was dilatory and did not constitute a sufficient cause for continuánce. To this ruling the defendants noted an exception and the case was tried the second time, resulting in' a verdict for the plaintiffs. The defendants again excepted and appealed.
When the first verdict was returned, the following entry was made: “The court of its own motion sets the verdict aside in the above.”
In several decisions it has been held that a judge in setting aside a verdict should assign his reason for doing so, and if no reason be given, his action will be ascribed, not to discretion, but to a conclusion of law from which an immediate appeal may be taken. Abernethy v. Yount, *400138 N. C., 338; Jarrett v. Trunk Co., 142 N. C., 466; Drewry v. Davis, 151 N. C., 295. In the statement of tbe case on tbe second appeal, bis Honor assigned tbe exercise of discretion as tbe ground upon wbicb tbe first verdict was vacated, and if tbis entry bad been made a part of tbe original order bis Honor would bave been justified in disregarding tbe first appeal; but tbe second trial occurred after tbe first appeal bad been taken and while it was pending, and tbe subsequent entry as to tbe court’s discretion, made after tbe adjournment of tbe February term, could iiot deprive tbe defendants of tbeir right to test in tbe appellate court tbe validity of tbe order as it was originally made setting aside tbe first verdict.
There were two trials, and there are two statements of case on appeal. In tbe first statement tbe only assignment of error is tbe action of tbe court in vacating tbe first verdict. Tbe exception cannot be sustained because, as held in Drewry v. Davis, supra, it was incumbent upon tbe appellants to show error in tbe order, tbe presumption being in favor of its validity. Powers v. Wilmington, 177 N. C., 361. Tbe record of tbe first trial was not sent up as a part of tbe case on appeal; it does not appear whether the defendants excepted to tbe admission or rejection of evidence or to any of tbe instructions to tbe jury or to anything that occurred during tbe trial. Tbe defendants’ assignment of error is •not sufficient to rebut tbe presumption that tbe order was correct or to show that bis Honor was in error. In Drewry v. Davis, supra, it is said: “In those cases where tbe rule applies, both parties bave tbe right to appeal — the one to sustain tbe ruling and, if not sustained, to bave tbe court pass upon any exceptions taken by him during tbe trial and duly assigned as error; tbe other to convince tbis Court of tbe error of tbe trial judge. Tbis course was followed in Cole v. Laws, 104 N. C., 651, and Metal Co. v. R. R., 145 N. C., 293.” In Abernethy v. Yount, supra, exceptions to tbe introduction of evidence appeared in tbe case on appeal, and it was suggested that if other exceptions were taken at tbe trial tbe appellant should bave put them in tbe record.
But there is sufficient reason for granting a new trial. "When tbe case was called at tbe March term tbe defendants excepted to the court’s ruling that tbe first appeal was dilatory and that tbe case should be tried unless there was other cause for a continuance. Tbis exception, we think, is meritorious. It is supported by tbe principle stated in Pruett v. Power Co., 167 N. C., 598. There tbe defendant appealed to tbe Supreme Court from an order deuying its petition to remove tbe case to tbe Federal Court on tbe ground of diversity of citizenship. Pending tbe appeal, tbe cause was tried in tbe Superior Court, tbe defendant retaining its rights under tbe petition. On appeal tbe order *401denying the motion for removal was affirmed, but on appeal from tbe final judgment it was field tfiat tfie lower court was witfiout power to fiear and determine tfie issues arising on tfie pleadings pending tfie appeal, and tfiat tfie verdict and judgment sfiould be set aside. Tfiis decision is controlling in. tfie instant case. When tfie defendants appealed from tfie order setting aside tfie verdict and granting a new trial, further proceedings sfiould have been stayed until the appeal was determined. C. S., see. 655.
It is true tfie first appeal was not docketed in tfie Supreme Court at tfie time of tfie second trial, but tfie statement was served on II March, and two days later, on tfie first day of tfie next term, fiis Honor made tfie ruling of which tfie defendants complained. It seems tfie second trial took place before tfie time had expired for perfecting tfie appeal in tfie appellate court, and under these circumstances laches can hardly be imputed to tfie defendants.
Tfie verdict and judgment entered of record at tfie second trial are set aside and a new trial is awarded.
New trial.