Bailey v. Dibbell Mineral Co.

• Decision Date: 17 May 1922
• Docket Number: 505.
• Citation: 112 S.E. 29,183 N.C. 525
• Parties: BAILEY ET UX. v. DIBBELL MINERAL CO. ET AL.
• Court: North Carolina Supreme Court

112 S.E. 29

183 N.C. 525

BAILEY ET UX. v. DIBBELL MINERAL CO. ET AL.

No. 505.

Supreme Court of North Carolina

May 17, 1922

Appeal from Superior Court, Mitchell County; Finley, Judge.

Action by Isaac H. Bailey and wife against the Dibbell Mineral Company and another. From an order setting aside a verdict for plaintiffs and directing a new trial, plaintiffs appeal. Affirmed.

Councill & Yount, of Hickory, and Chas. E. Greene and McBee & Berry all of Bakersville, for appellants.

M. L Wilson, of Bakersville, and S. J. Ervin and S. J. Ervin, Jr. both of Morganton, for appellees.

STACY J.

This is an appeal by the plaintiffs from the discretionary ruling of his honor in setting aside the verdict, as rendered by the jury, and ordering a new trial of the cause. The case was tried at the November term, 1921, of the superior court for Mitchell county. The jury returned a verdict in favor of the plaintiffs, and the defendants at the same term duly entered a motion to have the same vacated and set aside. This motion by consent, was continued to be heard in vacation at some time and place convenient to the parties and to the court. On January 6, 1922, the judge wrote counsel for the plaintiffs the following letter:

"I am writing to know if any adjustment has been made in the Bailey Case from Mitchell county. If there has been no settlement of this matter, and if your clients have not offered a reasonable settlement, I feel it my duty to set aside the judgment as it was clearly against the weight of the testimony. However, I hope the matter has been arranged, but I have heard nothing from either side for some time. It will not be necessary to appear and argue the matter before me on the day fixed. I am sending copy of this letter to Messrs. Ervin and Ervin, and after getting replies from both of you I will announce my decision at once."

Upon receipt of this letter counsel for plaintiffs appeared before his honor in Charlotte, N. C., and stated that plaintiffs would agree to lease the property to the Mineral Company for 20 years at an annual rental price of $250. This his honor thought was too much, but stated that--

"If the plaintiffs would agree to execute a lease to the Mineral Company, or defendants, for 20 years, at the rate of $100.00 a year, he would sign a judgment according to the answers to the issues as found by the jury."

Plaintiffs, through their counsel, declined to agree to this suggestion, whereupon his honor stated that unless some such agreement were made and carried out he would set the verdict aside, which he did. The order, as signed by the judge, contains the following recital:

"And, it appearing to the court that the jury, in reaching said verdict, disregarded the instructions of

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