Moore v. Tidwell, 194 N.C. 186 (1927)

June 25, 1927 · Supreme Court of North Carolina

194 N.C. 186

O. HENRY MOORE v. G. L. TIDWELL et al.

(Filed 25 June, 1927.)

Appeal and Error — Motion to Retain Cause in Superior Court to Correct Amount of Judgment.

Where the Supreme Court, on appeal, has allowed a motion for a new trial for newly discovered evidence after having fixed a time in which the parties may file their affidavit in support of the motion and per contra, the Court will not thereafter allow a motion retaining the case on its docket for the purpose of correcting the amount of the judgment. Teeter v. Express Co., 172 N. C., 620, cited and approved.'

MotioN by plaintiff that the judgment of this Court, entered 10 June, 1927, awarding a new trial for newly discovered evidence, be recalled before it is certified to the Superior Court of Mecklenburg County, and that the judgment of $15,000, rendered in this cause against L. B. Cress and J. F. Lowder, from which they appealed, be credited with $3,500, the amount paid plaintiff by L. F. Barnard and the Eoyal Blue Transportation Company, together with interest thereon from date of payment, 11 August, 1926, the plaintiff now agreeing to remit said amount.

GarsweTl & Ervin and John M. Robinson for plaintiff.

Hartsell & Hartsell and Preston & Ross for defendant.

Pee Curiam.

Prior to the call of this case for argument, which comes from the Fourteenth District, the appealing defendants duly notified plaintiff of their intention to renew the motion, originally made in the Superior Court, for a new trial on the ground of newly discovered evidence. With respect to this motion, the following order was entered 28 April, 1927, and notice thereof duly given to counsel on both sides:

“Motion continued until 24 May, 1927, with leave to both parties to file additional affidavits, if so advised. Appellants shall file their affidavits by 18 May, 1927, and appellees shall have until 24 May, 1927, to file counter affidavits, if so advised.”

This order could have but one meaning, i. e., that the Court would hear the motion and determine it on the showing made by the time set.

After carefully considering the affidavits filed on behalf of the defendants in support of their motion and the counter brief filed by plaintiff, the Court was constrained to allow said motion, it appearing that the showing made by appellants was sufficient to meet the requirements laid down in Johnson v. R. R., 163 N. C., p. 453, for the granting of new trials on the ground of newly discovered evidence.

Without expressing any opinion as to the nature of the instrument executed by the plaintiff to L. F. Barnard and the Eoyal Blue Transportation Company (as it is not properly before us for consideration), it would seem, from the facts now appearing, that the Court made no mistake in ordering a new trial of the cause.

The motion of plaintiff comes too late. It must, be denied on authority of Teeter v. Express Co., 172 N. C., 620.

Motion denied.