Under the former practice, a final judgment rendered in a proceeding at law was beyond the control of the Court after the expiration of the term. Moore v. Hinnant, 90 N. C., 163; and the rule is now established by law, which declares that no motion “to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages,” shall be heard, except at the term when the trial takes place. The Code, §412, par. 4; England v. Duckworth, 75 N. C., 309. But the power to vacate and set aside a judgment and relieve a party therefrom when “ taken against him through his mistake, inadvertence, surprise or excusable neglect,” within one year after notice, is expressly conferred by law, (The Code, §274,) and thus far, under the conditions mentioned, only authority over its rulings is prolonged for the specified period. There is no obli*402gation to exercise it even when the application comes within the terms of the statute, though some of the earlier decisions look that way; but it is discretionary with the Judge even then to allow or refuse the relief, and his action in refusing the relief, except for a supposed want of power, is not reviewable on appeal. Austin v. Clarke, 70 N. C., 458.
In Beck v. Bellamy, 93 N. C., 129, a similar effort was made, after a verdict and judgment rendered at a former term, to obtain relief, as is proposed in this case, under the same provision of The Code, and this Court said: “ The statute, in conferring power, confines its exercise to judgments rendered under the specified conditions, and does not embrace such as necessarily follow the verdict, and the setting aside of which, without at the same time disturbing the verdict, would be of no advantage to the party, for it must again be entered in conformity to the jury findings. To vacate both is necessary to afford the desired relief, and this would be to grant a new trial, which can,, only be done at the term when it took place.” To the same effect are the cases of Foley v. Blank, 92 N. C., 476; Winborne v. Johnson, 95 N. C., 46, and Twitty v. Logan, 86 N. C., 712.
If, however, the Judge refuses to grant the motion for a supposed want of power, when, upon a proper construction of the statute, he has it, the error may be corrected on appeal, and an opportunity afforded him to determine whether he will exercise it. Hudgins v. White, 65 N. C., 393; Gilchrist v. Kitchen, 86 N. C., 20. So a refusal to amend, for want of power to allow the amendment asked, in the case when it is possessed, this is error in law and can be corrected in the appellate Court. Henderson v. Graham, 84 N. C., 496, citing Freeman v. Morris, Busb., 287, where a motion for permission to supply, in the record, a copy of a lost will which had been .sustained by the verdict of the jury, was refused, upon the ground of a supposed absence of power to allow it, and the *403error was corrected on appeal, and the application remitted for the exercise of the Judge’s discretion.
These cases all stand upon the ground that the refusal to act proceeded from an alleged want of power, and in this consisted an error in law.
The wrong complained of by the defendant in this case consists in being forced into a trig! unexpectedly and unprepared, when this was in consequence of what was said to his counsel by the Judge himself, about the cause being continued, or in other words, not allowing a continuance, under the circumstances, to another term. However forcible was this application, it could only be made to the Judge who tried the cause, and not to the Judge who presided at the succeeding term, and we cannot see how these considerations can enter into and qualify a judgment of necessity following the verdict, as one obtained “through his (the defendant’s) mistake, inadvertence, surprise or excusable neglect,” and come within the operative provisions of the law.
It is true, the Judge holds the defendant’s negligence, in reference to being unprepared for the trial, to be inexcusable, and the inference may possibly be thence drawn that he deemed himself not however invested with power to act in the premises ; the record does not so state, nor is there any intimation as to what he would do if possessed of the necessary authority, and to be a reviewable case, the refusal should affirmatively appear to have proceeded from the adjudged want of it. As we interpret the case the Judge simply ruled irrespective of the question of power; even if he possessed it, it would not be exercised in favor of the defendant on the facts shown in evidence.
If the record be construed as denying the motion because of the absence of authority to allow it, it does not follow that this was based upon a construction • of the statute, whether erroneous or not; but it should more reasonably be ascribed to the ruling in Beck v. Bellamy, supra, that the case was not *404within the statute. However this may be', the act of refusal cannot be assigned for error unless it results from an erroneous ruling. So that he has not exercised a discretion committed to him, and this the case must show.
There is no error, and the judgment is affirmed.