Carson v. Dellinger

• Decision Date: 28 February 1884
• Citation: 90 N.C. 226
• Parties: JOHN CARSON v. WILLIAM DELLINGER.
• Court: North Carolina Supreme Court

90 N.C. 226

JOHN CARSON

v.WILLIAM DELLINGER.

Supreme Court of North Carolina.

February Term, 1884.

OPINION TEXT STARTS HERENew Trial--Discretionary Power--Newly-discovered Evidence.

1. An application for a new trial, except for error of law in its conduct, is addressed solely to the discretion of the presiding judge, whose decision is not reviewable on appeal; Therefore, where a party moved for a new trial upon the ground that he had found a witness whose testimony was material to his case, and stating in his affidavit how he came into possession of the name of the witness, &c.; Held, that the judge's refusal of the motion was conclusive.

2. Held further: The granting a new trial for newly-discovered evidence and for matter occurring since the trial, where the application is made to this court, is a matter of sound discretion, in the exercise of which the court will be governed by the peculiar circumstances of the case.

( Moore v. Edmiston, 70 N. C., 471; Thomas v. Myers, 87 N. C., 31; Pain v. Pain, 80 N. C., 322; Dalton v. Webster, 82 N. C., 279; Vest v. Cooper, 68 N. C., 131; Bledsoe v. Nixon, 69 N. C., 81; Henry v. Smith, 78 N. C., 27; Horne v. Horne, 75 N. C., 101; Powell v. Watson, 6 Ired. Eq., 94; Houston v. Smith, Ib., 264; Dyche v. Patton, 8 Ired. Eq., 295, and 3 Jones Eq., 332; Holmes v. Godwin, 69 N. C., 467; Bank v. Tiddy, 67 N. C., 169; Moore v. Dickson, 74 N. C., 423; State v. Lindsey, 78 N. C., 499, cited, commented on and approved).

EJECTMENT tried at Fall Term, 1882, of MCDOWELL Superior Court, before Avery, J.

The defendant appealed.

Messrs. Reade, Busbee & Busbee, for plaintiff .

Messrs. Sinclair & Sinclair and J. B. Batchelor, for defendant .

SMITH, C. J.

The controversy in this action, upon the only issue submitted to and passed on by the jury, was to the proper position of the boundary lines of the one hundred acre grant issued to one Lewis Clark, of which the defendant is in possession of the part claimed by the plaintiff under a grant of earlier date to John Carson and subsequent conveyances reaching to himself. The defendant claimed the interference by virtue of an adversary continuous occupation for over forty years by those who preceded, and himself under color of title by deeds whose lines were dependent on and fixed by the location of those called for in the grant to Clark. These boundaries the defendant was unable to establish in consequence of the clearings by which all natural objects had been removed, and a verdict was found for the plaintiff, declaring him to be the owner in fee simple of the land described in the complaint.

Afterwards and during the term the defendant moved for a new trial, upon the ground that he had since found a witness whom he had seen at his residence in another county some seventy miles distant and conversed with on the subject, by whose testimony he would be able to locate the corners and lines of the Clark grant at the places contended for on the trial. In support of the application, his own affidavit, set out in full in the transcript, was read, explaining how he came into possession of the name of the witness; his repeated and unsuccessful previous efforts to obtain the needed evidence; the opportunities and means of knowledge possessed by the witness, and other matters in excuse which it is not necessary to further recite.

The court declined to interfere with the verdict and entered up judgment for the plaintiff, from which the defendant appeals.

The only question presented is whether the refusal of his application is a ruling erroneous in law and reviewable in this court.

However strongly the recitals in the affidavit, assuming them to be true, may appeal to the presiding judge for his interposition in the exercise of the power confided to him in administering the law, and to give to the defendant an opportunity to make use of the testimony of the newly found witness before another jury, it is a matter of discretion reposed in him which we have neither the right nor disposition to supervise or control. Considerations of the kind are addressed to his judgment, founded upon full knowledge of all that transpired at the hearing before the jury; and his decision granting or refusing the application is, and ought to be, final and conclusive.

The defendant's counsel attempts to withdraw the present application from the admitted general rule and distinguish it, as governed by fixed and well established principles of law, and insists that when the required conditions are met, the denial is of a legal right in the applicant and constitutes an error in law which may be revised and remedied by appeal.

In our examination of the authorities we do not find this distinction recognized, nor a motion on the ground of testimony recently found put upon a different footing with a motion to set aside a verdict and grant a new trial for any other assigned reason, not involving an error of law committed during its progress, the sufficiency of which the judge himself determines.

The jurisdiction conferred upon this court by the constitution, article four, section eight, aside from the enlargement made in the late amendment which has no application to the case, is “to review upon appeal every decision of the courts below upon every matter of law or legal inference,” and we can revise and correct erroneous rulings in matters of law arising out of ascertained facts, and not the exercise of a discretionary power. There are no facts found before us upon which the action of the judge, the subject of complaint, is predicated, so that, if it were the subject matter of appeal, we could decide upon its correctness. The affidavits which furnish the evidence of the assumed facts and which may be sufficient to warrant a finding, do not authorize this court to proceed upon them as established, in order to review the ruling. This alone is an adequate reason for refusing to entertain the appeal.

We propose, in illustration of this principle, to refer to some of our own adjudications, from which it will be seen that, upon whatever grounds based, the application for a new trial, except for error of law in its conduct, is addressed solely to the discretion of the trying judge and must abide the result of his opinion.

“By C. C. P., §299,” remarks BYNUM, J., “an appeal is allowed as well from an order granting as refusing a new trial, but in either case the matter appealed from must be of law or legal reference. * * * To give parties the benefit of the above section of the Code, the courts should, and no doubt will, on exceptions taken by the party 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 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, 70 N. C., 471; Thomas v. Myers, 87 N. C., 31.

In Pain v. Pain, 80 N. C., 322, in answer to an...