Jarrett v. Winston Mutual Life Insurance, 208 N.C. 343 (1935)

June 26, 1935 · Supreme Court of North Carolina

208 N.C. 343

CONNIE JARRETT v. WINSTON MUTUAL LIFE INSURANCE COMPANY.

(Filed 26 June, 1935.)

Appeal and Error J a — Order granting new trial for newly discovered evidence in exercise of discretionary power is not reviewable.

A motion for a new trial for newly discovered evidence, made in the Superior Court on appeal from judgment of the county court, is addressed to the discretion of the court, and an appeal from the court’s order allowing the motion and remanding the cause to the county court for a new trial will be dismissed.

Appeal by plaintiff from Pless, J., at February Term, 1935, of Forsyth.

Civil action to recover on policy of life insurance, instituted in tbe Forsyth. County Court, where verdict and judgment for $285.00 were rendered in favor of the plaintiff, from which the defendant appealed to the Superior Court of Forsyth County, assigning errors.

Defendant also lodged motion in the Superior Court for new trial on ground of newly discovered evidence. This motion was allowed, and the cause was remanded to the Forsyth County Court for new trial. From this ruling the plaintiff appeals, assigning errors.

Slawter & Wall for plaintiff.

Ingle & Rucker for defendant.

Stacy, C. J.

The Forsyth County Court was established in 1915, as an inferior court for the trial of civil cases only, with the right of appeal by “either the plaintiff or the defendant” to the Superior Court of Forsyth County “for errors assigned in matters of law in the same manner and under the same requirements as are now provided by law for appeals from the Superior Court to the Supreme Court.” Chapter 520, Public-Local Laws 1915; Chappel v. Ebert, 198 N. C., 575, 152 S. E., 692. Subsequent legislation affecting the court is not presently pertinent. Chemical Co. v. Turner, 190 N. C., 471, 130 S. E., 154.

The appellate jurisdiction of the Superior Court is not questioned; its authority in the exercise of such jurisdiction to grant new trials on the ground of newly discovered evidence is not mooted; nor is the sufficiency of the evidence to invoke a discretionary ruling challenged on the present record. Crane v. Carswell, 204 N. C., 571, 169 S. E., 160. These are all conceded or taken for granted. S. v. Edwards, 205 N. C., 661, 172 S. E., 399; S. v. Lea, 203 N. C., 316, 166 S. E., 292; S. v. Casey, 201 N. C., 620, 161 S. E., 81.

It is tbe uniform bolding tbat no appeal lies to tbis Court from a discretionary determination of an application for a new trial on tbe ground of newly discovered evidence. Crane v. Carswell, supra; S. v. Ferrell, 206 N. C., 738, 175 S. E., 91.

Speaking to tbe subject as far back as Vest v. Cooper (1873), 68 N. C., 131, Beade, J., delivering tbe opinion of tbe Court, said: “There seems to be an impression tbat there may be an appeal from every motion for a new trial; and tbe fact is overlooked tbat it must Involve a matter of law or legal inference,’ and not a mere matter of discretion. Tbis will illustrate: Plaintiff recovers of defendant $1,000. Defendant files affidavit tbat since tbe trial be has discovered tbat be can prove tbe debt has been paid. His Honor says, I believe your affidavit and I grant a new trial, or I do not believe it, and I refuse a new trial. Tbis is a matter of discretion, and no appeal lies.” Tbis has been cited with approval in subsequent decisions: S. v. Riddle and Huffman, 205 N. C., 591, 172 S. E., 400; S. v. Lea, supra.

It follows, therefore, tbat tbe appeal must be dismissed. It is so ordered.

Appeal dismissed.