Walston v. Greene, 246 N.C. 617 (1957)

Sept. 18, 1957 · Supreme Court of North Carolina

246 N.C. 617

JOE WILLIE WALSTON, Administrator of the Estate of ALLEN LEON WALSTON, Deceased, v. RICHARD GREENE and J. C. SPENCE, Guardian Ad Litem.

(Filed 18 September, 1957.)

Trial § 52—

Tbe action of tbe trial court in setting aside tbe verdict in its discretion upon its opinion that equity and justice so required is not subject to review on appeal in tbe absence of abuse of discretion.

Appeal by defendant from Parker, J., February Term, 1957, of Pasquotank.

Administrator’s action to recover damages for wrongful death. Plaintiff’s intestate, a six year old boy, was killed when struck by an automobile operated by defendant.

Issues of negligence, contributory negligence and damages, raised by the pleadings, were submitted. The jury answered the first (negligence) issue, “No.” Whereupon, plaintiff moved to set aside the verdict. The court allowed said motion; and, “In the Disceetion op the Couet,” it was “ORDERED, Considered and Decreed that the Verdict be, and it is hereby Set Aside, and that this action be reinstated upon the civil issue docket of Pasquotank County for disposition at some future term of Court.”

Defendant excepted to said order and appealed. The only assignment of error is based on this exception.

Forrest V. Dunstan and Frank B. Aycock, Jr., for 'plaintiff, appellee.

LeRoy & Goodwin for defendant, appellant.

Per Curiam.

Whether a verdict should be set aside, otherwise than for error of law, rests in the sound discretion of the trial judge. Here the trial judge, “being of the opinion that justice and equity” required that he do so, exercised such discretion and set the verdict aside. The record discloses no abuse of discretion; hence, the order is not subject to review on appeal. Brink v. Black, 74 N.C. 329; Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936; Goodman v. Goodman, 201 N.C. 808, 161 S.E. 686; In re Blair, 230 N.C. 753, 55 S.E. 2d 504; Williams v. Stumpf, 243 N.C. 434, 90 S.E. 2d 688.

The appeal is without substance, and will be dismissed. Goodman v. Goodman, supra.

Appeal dismissed.