Rodgers v. Cherry, 52 N.C. 539, 7 Jones 539 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 539, 7 Jones 539

WILLIAM B. RODGERS v. T. R. CHERRY.

Where a Judge, in the Court below, made the following order: “Verdict set aside and new trial granted on paying the costs of- this court,” it was Held that paying the costs was not a condition precedent to the new trial, but the failure of the Court to revoke the order during the term and to give judgment on the verdict, gave a new trial irrevocably.

Where a Judge, at one term, granted a new trial, and ruled the plaintiff to “ give security on or before Monday of the next court, or this suit will be dismissed,” it was Held that the Judge sitting- at the next term might extend this rule, on a subsequent day of that term, so as to allow the plaintiff to give security.

This was an action of trover, brought in tlie Superior Court of Pitt county.

At September Term, 1859, the cause was submitted to the jury, and there was a verdict for the defendant. At said term, the Court made the following order, viz: “ Yerdict set aside and new trial granted on paying the costs of this Court. Eule on the plaintiff to give security on or before Monday of next term, or this suit will be dismissed.” At the next term of the said Court, Saunders, J., presiding, the plaintiff moved, on Tuesday, to be allowed to pay the costs of the last eourt and tendered a sufficient prosecution bond. He also filed the affidavits of Jesse A. Adams, agent for the plaintiff, and also of William B. Bodman, one of his counsel on the former trial, proving that the plaintiff was a non-resident of the State ; that Adams, his agent, resided in Wilson county; that after the trial, at September, 1859, the plaintiff, by his counsel, moved for anew trial,, which motion was argued; that the Judge did not then decide upon it ; that afterwards, during that term,, the- Judge did direct the clerk to make the entry, which appears of record, granting the new trial on terms ;, that neither the plaintiff nor his agent, nor his counsel, were in Court at the time when the Judge so-directed the clerk, and they had no knowledge of the order until after the expiration of the term; but did have shortly thereafter, and that the plaintiff’s agent attended this Court,, on Tuesday, to-pay the money, by the advice of Mr. Howard, one of plaintiff’s counsel. The defendant’s counsel opposed the motion. His Honor allowed the motion of the plaintiff, who, accordingly, paid the cost and gave the bond- — whereupon the defendant moved for judgment against the plaintiff according to the verdict, which motion was refused by the Court. Defendant appealed to this Court.

Rodman, for the plaintiff.

Warren and Donnell, for the defendant.

Manly, J.

We have examined this case and do not find any error in the proceedings below. The new trial, granted at the September term, 1859, was not upon a condition precedent. The words used are not so interpreted ordinarily.

In the case of Spencer v. Cahoon, 1 Dev. and Bat. 27, it was held that a.grant of administration, upon giving bond in the sum of $4000, with J. B. and W. S. as sureties, was a valid grant of administration, although it was not stated on the record that the administrator gave bond and was properly qualified. The want of such a statement might render the grant defective and authorise the countjr court to annul it, but until that is done, the grant must be respected as valid by the courts.

So, we hold that the grant of a new trial was valid-, unless the Court, insisting upon the payment of costs as a condition, should, during the term, revoke the order and .give judgment upon the verdict. Suffering the term to expire with the oi’der in the condition in which we find it, and no judgment upon the verdict, in effect, gives a new trial irrevocably. A different interpretation of the woi’ds of the order, would bo inconvenient, if not impracticable.

We do not think there is any 'ei’ror in the action of the Court below, upon the rule for security. The power of the Court, sitting in the fall term, to make an order of this -kind, to be carried into effect at the subsequent term, unconditionally .and without power of modification, is not admitted. It is of the nature of such orders too, that they are, at all times,, “subject to be modified to meet the exigencies of the case.. The Court sitting in the spring had the unquestionable right to enlarge the rule for security on Monday, if the subject had been called to the attention of the Court. And so we hold on Tuesday the Court might enlarge the rule, as of the day before, and allow the security to be putin then. This is what the Court did in substance; 2 Tidd. 769.

■ There is no error in the orders appealed from, and this opinion should be certified to the Superior Court of Pitt, to the end it may proceed.

Per Curiam,

Judgment affirmed.*