In re Hargrove, 207 N.C. 280 (1934)

Oct. 31, 1934 · Supreme Court of North Carolina

207 N.C. 280

In re Will of SUDIE HARGROVE.

(Filed 31 October, 1934.)

1. Appeal and Error A f — Propounders are not “parties aggrieved” by-order setting aside verdict in favor of caveators.

In tbis caveat proceeding tbe jury found against propounders, and tbe trial court set aside tbe verdict as being against tbe weight of tbe evidence and ordered a new trial. Propounders appealed, assigning as error tbe refusal of tbe court to sustain their pleas in bar: Held, tbe pro-pounders are not tbe “parties aggrieved” by tbe order setting aside the verdict, O. S., 632, and cannot maintain tbe appeal.

• 2. Appeal and Error 3 a—

Tbe Supreme Court will not interfere with tbe discretion of tbe trial judge in setting aside a verdict as being against tbe weight of tbe evidence.

Appeal by propounders from Frizzelle, J., at May Term, 1934, of SAMPSON.

Issue of devisavit vel non, raised by a caveat to tbe will of Sudie Hargrove, late of Sampson County, based upon alleged mental incapacity.

Tbe jury found tbat tbe alleged testatrix did not bave sufficient mental capacity to execute tbe paper-writing propounded, and tbat tbe same was not tbe last will and testament of Sudie Hargrove.

Tbe court being of opinion tbat tbe verdict- was contrary to tbe weight of tbe evidence, on tbe determinative issues, set tbe same aside, in bis discretion, and ordered tbe issue of devisavit reinstated on tbe calendar for trial at a later term.

Propounders appeal, assigning as error tbe refusal of tbe court to sustain tbeir pleas in bar.

J. Faison Thomson, Needham Outlaw, Hewry E. Faison, Henry A. Grady, Jr., and Hugh Brown Campbell for the caveators.

Butler & Butler for propounders.

Stacy, C. J.

Tbis is tbe same case tbat was before us on two former appeals, reported in 206 N. C., 307, 173 S. E., 577, and 205 N. C., 72, 169 S. E., 812.

Tbe questions now sought to be presented are not properly before us for decision. In tbe first place, tbe propounders are not tbe “parties aggrieved” by tbe order setting aside tbe verdict within tbe meaning of C. S., 632 — such action being favorable to them — and, in tbe next place, “tbis Court will not interfere with tbe discretion of tbe trial judge in setting aside a verdict as being against the weight of the evidence.” Edwards v. Phifer, 120 N. C., 405, 27 S. E., 79; Brink v. Black, 74 N. C., 329; Goodman v. Goodman, 201 N. C., 808, 161 S. E., 686.

The appeal was improvidently taken, and must be dismissed. McCullock v. R. R., 146 N. C., 316, 59 S. E., 882; Guy v. Ins. Co., 206 N. C., 118, 172 S. E., 885.

Appeal dismissed.