Upchurch v. Buckner, 241 N.C. 411 (1955)

Jan. 14, 1955 · Supreme Court of North Carolina
241 N.C. 411
S. M. UPCHURCH and PAUL H. ROBERTSON v. C. P. BUCKNER and Wife, PAULINE BUCKNER

S. M. UPCHURCH and PAUL H. ROBERTSON v. C. P. BUCKNER and Wife, PAULINE BUCKNER.

(Filed 14 January, 1955.)

Trial § 49—

A motion to set aside tlie verdict as being against tbe greater weight of the evidence is addressed to the sound discretion of the trial court, and when no abuse of discretion is shown, the court’s refusal to grant the motion is not reviewable.

Appeal by plaintiffs from McKeithen, Special Judge, May Term 1954 of OeANGE.

Civil action to recover a balance of $1,817.67 under an alleged contract for completion of a dwelling bouse for tbe defendants.

Tbe defendants filed answer denying that they owed plaintiffs anything, and set up a cross-action asking for the recovery of $1,500.00 allegedly due them from a loan made on tbe property, and also for tbe recovery of $1,500.00 damages for alleged defective workmanship and inferior materials used in tbe construction of tbe dwelling bouse by tbe plaintiffs.

Tbe plaintiffs and the defendants offered evidence in support of tbe allegations in their pleadings.

Tbe court submitted two issues to tbe jury: One. In what amount, if any, are tbe defendants indebted to tbe plaintiffs? And Two. In what amount, if any, are tbe plaintiffs indebted to tbe defendants ? Tbe jury answered tbe first issue nothing and tbe second issue $1,500.00. Judgment was entered in accordance with the verdict.

Plaintiffs appeal therefrom assigning error.

L. J. Phipps for Plaintiffs, Appellants.

Bonner D. Sawyer for Defendants, Appellees.

Per Curiam.

Plaintiffs have two assignments of error: One, to tbe court’s refusal to set tbe verdict aside as being against tbe greater weight of tbe evidence, and Two, to tbe signing of tbe judgment.

Tbe evidence was conflicting. Tbe motion by tbe plaintiffs to set aside tbe verdict as being against tbe greater weight of tbe evidence was one addressed to tbe sound discretion of tbe court, and no abuse of discretion being shown its refusal to grant tbe motion is not reviewable. Billings v. Observer, 150 N.C. 540, 64 S.E. 435; Hoke v. Whisnant, 174 N.C. 658, 94 S.E. 446; Anderson v. Holland, 209 N.C. 746, 184 S.E. 511; Coach Co. v. Motor Lines, 229 N.C. 650, 50 S.E. 2d 909; Poniros v. Teer Co., 236 N.C. 145, 72 S.E. 2d 9.

Appeal dismissed.