Abernethy v. Yount

• Decision Date: 09 May 1905
• Citation: 50 S.E. 696,138 N.C. 337
• Parties: ABERNETHY v. YOUNT.
• Court: North Carolina Supreme Court

50 S.E. 696

138 N.C. 337

ABERNETHY v. YOUNT.

Supreme Court of North Carolina

May 9, 1905

Appeal from Superior Court, Catawba County; McNeill, Judge.

Action by A. S. Abernethy against D. E. Yount. From an order granting a new trial, plaintiff appeals. Reversed.

Clark C.J., and Hoke, J., dissenting in part.

A paper containing a genuine signature need not be introduced in evidence to warrant its comparison with a signature, the genuineness of which is in issue, in formulating an opinion thereon by an expert.

The plaintiff brought suit in a justice's court against the defendant for the recovery of a note for $53.20. Upon appeal the cause was tried in the superior court upon the following issue: "Did the defendant execute and deliver the alleged note set out by the plaintiff as the cause of action?" The plaintiff testified that he bought the note from one A. S. Satterthwaite, and, before it fell due, paid full value for it; that no payment had been made thereon, and that the defendant's name was signed to it; that he bought it without notice of any defense thereto. The defendant testified that he did not sign any note to Satterthwaite; that he signed an application for insurance that Satterthwaite did not ask him to sign a note, and nothing whatever was said about a note; that he never saw a note until the magistrate's trial. His application for insurance was turned down, and he never received any policy. He admitted he signed an application for insurance, which was shown him. There was other testimony tending to show that the plaintiff purchased the note for value and without notice. The plaintiff introduced La Fayette Huffman, who testified that he was a graduate of Lenoir College, had studied penmanship, and was assistant to the clerk of the court. The witness was shown the application for insurance, which the defendant admitted he had signed, and testified, under the defendant's objection: "I think the signatures on the two papers are the same. It is the same handwriting, to the best of my knowledge." To this testimony the defendant excepted for that (1) the witness had not been shown to have been an expert; (2) that the paper used as a standard of comparison should be first introduced in evidence; and (3) that the proposed standard of comparison was not a proper standard. The objection was overruled, and the defendant excepted. On cross-examination the witness said, "I never saw the defendant write. Will not swear that the defendant signed the note. It was possible that the signature on the note could have been forged." The jury having answered the issue in the affirmative, the defendant moved to set aside the verdict as being against the weight of evidence. Motion refused, and defendant excepted. Motion by defendant for new trial, which motion was allowed, and the plaintiff excepted; assigning as error his honor's order allowing the defendant's motion for a new trial, and refusing to enter judgment on the verdict. Plaintiff appealed.

Self & Whitener, for appellant.

CONNOR J. (after stating the facts).

Code, § 412, provides that the judge who tries the cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for insufficient evidence, or for excessive damages. We understand the first cause, "upon exceptions," to refer to exceptions made upon the record during the trial, as for admitting or rejecting testimony, giving or refusing to give instructions, or other action of the judge. For granting or refusing to grant such motion, "involving a matter of law or legal inference," an appeal lies to this court. Thomas v. Myers, 87 N.C. 31. For granting or refusing to set aside the verdict, or granting a new trial for insufficient evidence or excessive damages, no appeal lies. This can be done only during the term. It is held in Benton v. Collins, 125 N.C. 83, 34 S.E. 242, 47 L R. A. 33, that power is given the judge by this section to set aside a verdict and grant a new trial for inadequacy of amount of damages. He may also exercise the power to set aside the verdict and judgment under the provisions of section 274. This may be done during the term or within one year thereafter. Quincey v. Perkins, 76 N.C. 295. In addition to these causes, the judge may, in his discretion set aside a verdict and order a new trial during the term for any cause which casts suspicion upon the verdict, such as misconduct of jurors or other officers of the court, or the parties or witnesses. After enumerating the causes which entitle a party aggrieved to have the verdict set aside as a matter of right, Bynum, J., says: "All other circumstances of suspicion address themselves exclusively to the discretion of the presiding judge in granting or refusing a new trial. He is clothed with this power because of his learning and integrity, and of the superior knowledge which his presence at and participation in the trial gives him over any other forum." Moore v. Edmiston, 70 N.C. 471. The line which divides the cases in which the party aggrieved may, as a matter of right, demand that a verdict be set aside from those in which the question rests in the discretion of the judge, was marked, after full discussion by those two eminent and learned sages of the law, Ruffin and Gaston, in State v. Miller, 18 N.C. 500. The view of the majority of the court in that case has been uniformly adopted and followed by this court. State v. Tilghman, 33 N.C. 513; Moore v. Edmiston, supra. We have no disposition to question its soundness or limit its operation further than is done in that and other cases. We fully recognize the necessity, and therefore the wisdom, of vesting in the presiding judge the power to so regulate the proceedings of the court over which he presides that such order, decorum, and observance of the fixed rules of procedure be enforced as becomes the dignity of the court, and secures fair and impartial trial of causes. We think, however, that it is in no degree inconsistent with or unduly restrictive of such power to hold that when the judge exercises it as a matter of discretion, as distinguished from a conclusion upon a "matter of law or legal inference," he so states on the record, to the end that parties may be advised respecting their right to have his action reviewed. An examination of many cases which have been before this court shows such to have been the practice. Referring to the provisions of section 412 (4), Bynum, J., says: "Heretofore it has been the practice of superior courts, in granting new trials, not to put upon record the facts or reasons moving them thereunto, and we know of no rule of law requiring it to be done. But now, to give parties the benefit of the above section of the Code, the courts should, and no doubt will, on exceptions taken by the parties aggrieved, put upon the record the matters inducing the order granting as well as refusing a new trial. The appellate court can thus see whether the order presents a matter of law, which is the subject of review, or a matter of discretion, which is not. In this way only, it is conceived, can the full benefit of that provision of the Code be secured to suitors." Moore v. Edmiston, supra. It is stated in the opinion that the facts upon which the new trial is granted are set out. In Smith v. Whitten, 117 N.C. 389, 23 S.E. 320, it is said that it is the duty of the judge, upon request, to state upon the record the facts moving him to refuse or grant a new trial. A new trial was refused in that case. It would seem from the language of the court that, if no request was made, his failure to do so may not be made a basis of exception. It is not very clear from the report whether the motion was based upon section 412 (4). In Carson v. Dellinger, 90 N.C. 226, it appeared that the motion was made to set aside the verdict to enable the mover to introduce on another trial newly discovered testimony. This was clearly within the discretion of the judge. The cases cited fully sustain the conclusion. In State v. Braddy, 104 N.C. 737, 10 S.E. 261, the headnote is misleading, in stating in general terms the power of the court to grant a new trial. The language of Merrimon, C.J., is: "If, through inadvertence or mistake, he was about to suffer injustice, it lay in the sound discretion of the judge who presided at the trial to grant a new trial." It was refused in that case. In Jones v. Parker, 97 N.C. 33, 2 S.E. 370, the motion was refused; the judge stating his reasons therefor. In State v. Boggan, 133 N.C. 761, 46 S.E. 111, the facts were found by the judge; also in State v. Daniels, 134 N.C. 671, 46 S.E. 991. In Brink v. Black, 74 N.C. 329, the motion was made and granted because the verdict was against the weight of the evidence. In Redmond v. Stepp, 100 N.C. 212 (219), 6 S.E. 727, the motion to set aside the verdict was because of insufficient evidence and newly discovered testimony. So in Edwards v. Phifer, 120 N.C. 406, 27 S.E. 79. In Braid v. Lukins, 95 N.C. 123, the record states that upon the return of the verdict a motion was made to set aside "because the verdict was irregular," the court refused judgment, and the plaintiff excepted. The court set aside the verdict and granted a new trial. Merrimon, J., said: "Now in the case before us it does not appear upon what ground the learned judge places his decision. He may have thought that the verdict was against the weight of the evidence, or that the price allowed for the lumber was excessive, or some other like cause may have prompted his action. The defendant, it is true, moved to set the verdict aside because it was irregular, but it does not appear that the court placed its decision upon that ground." In Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936, the...