(after stating the facts). We think it clear, that a new trial awarded for some vitiating illegal ruling, which maybe reasonably supposed to have influenced the verdict, re-opens the controversy for the admission of any evidence that is itself competent, and ought to have been received, if offered, at the first trial. This is equally true when the Judge assumes the function of passiug upon the evidence, and determining the facts upon which the judgment is grounded. We do not of course refer to those exceptional cases, where of several issues, severable in their relations, an infecting error enters into the finding of one, and the new trial is confined to that issue, as in Burton v. Railroad, 84 N. C., 193; Lindley v. Railroad, 88 N. C., 547; Roberts v. Railroad, Ibid., 560; nor to cases wherein some of the essential matters in controversy, necessary to be determined before final judgment, have not been passed on, and the verdict is insufficient, as in Allen v. Baker, 86 N. C., 91.
There were no facts found in the former appeal, upon which the order vacating the judgment could be seen to have been founded, and the appellate Court, could not consequently decide upon the correctness of that ruling. The motion when re-heard, stood upon the same ground as if an entire verdict had been set aside, and the trial is of necessity de novo. There had been no fact determined, and the issue before the Judge included all such facts as were required in deciding upon the merits of the application, and was open to any evidence, legally admissible, which either party might be able to adduce, in conformity with the *707practice. In jury trials, the litigants introduce any proofs they may have, in proper order, until all are heard, and may, with leave of the Court, offer further proofs after the testimony has been closed.
Neither is‘required in advance, to communicate to the other that which he expects to introduce. Why should a different rule prevail when the Court is called on to perform a similar service? As affidavits are ex parte and no opportunity is offered for cross examination, there is a propriety in affording counsel an opportunity for examining such as may be offered against him, before trial, so that he may controvert the new matter, by adversary evidence, and when this is not done, it may present a case of surprise, authorizing the arrest of further proceedings, until the new evidence can be met. We know of no rule regulating the hearing of motions such as the present, which requires the filing of affidavits before the trial is entered upon, and their rejection when they are not. There is, of course, a discretion reposed in the Judge, which may warrant his rejection of testimony in this ex parte form, when inopportunely offered out of the regular course of proceeding, just as he may, under such circumstances' permit it. We do not abridge his exercise of discretion in these cases. The present case ik not of this kind. Notice of the affidavit was given in advance, and it does not appear that the plaintiff or his counsel were refused an opportunity of seeing it, or even that they wished to know what it contained. No unfair advantage was taken, and the plaintiff assented to the hearing, with the knowledge that the affidavit would be offered.
It is true, the opposition to its admission is put by the plaintiff’s counsel, upon the general ground “ that he had no notice of it, nor opportunity to answer it before the hearing,” and the record says the objections were sustained. If by this is meant that sufficient time had not been given to prepare the answering evidence, as we have already said, the objection is untenable in law, and could have been removed by a postponement.
*708Another portion of the record seems to imply the ruling out of the affidavit for a different reason. The plaintiffs counsel seemed to have entertained the erroneous idea, that no testimony could be heard, but such as was before the Judge when the motion was first heard and allowed. This is indicated in the application for striking out the second, or, as it is called, supplemented affidavit of the deceased, though on file for six years* because the leave of the Court was not first obtained, as necessary to'its admission. And the ruling seems, in some degree, to countenance the suggestion, since the objection is overruled, not for its intrinsic invalidity, but because the affidavit had so long remained on file, and no motion of such nature had before been made to this effect. Then immediately appears the objection to the reading of the refused affidavit, and the ruling sustaining it. It would seem that the implication found in the previous ruling, was acted on as a sufficient reason for rejecting the other. If this be the interpretation of the record or case, the action of the Court proceeds upon an underlying misconception of the law and practice in disallowing the evidence. And in the other view of the case, there was error in the ruling, which entitles the appellant to another hearing. It is not an authorized act of discretion, but a denial to the defendant of a legal right.
We are not prepared to say, even upon the findings, that the case is not within the purview of §274 of The Code, and that the ruling of the Judge in this regard is correct. But we express no opinion upon the point, as the facts developed upon the evidence, and found at the next trial, may be entirely different.
There is error in the ruling out of the affidavit, as a matter of law, and there must be another trial. It is so adjudged.
Error. Reversed.